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The University of Georgia 




Alexander Campbell King Law Library 



UNIVERSITY OF GEORGIA LAW LIBRARY 



3 8425 00479 3696 



Digitized by the Internet Archive 

in 2011 with funding from 

LYRASIS IVIembers and Sloan Foundation 



http://www.archive.org/details/compilationofgenOOcobb 



A 



COMPILATION 



-OF THE 



GEJfEKAL AID PUBLIC 



STATUTES 



OF 



THE STATE OF GEORGIA; 



WITH THE 



FOEMS AND PRECEDENTS 

NECESSARY TO THEIR PRACTICAL USE. 



AND 



i J^ffiilix 



CO:NrTAINING THE NATURALIZATION LAWS ; THE CONSTITUTIONS OE THE UNITED 
STATES AND OF GEORGIA, AND THE RULES OE PRACTICE. 

By HOWELL COBB. 



NEW YORK: 

PRINTED BY EDWARD 0. JENKINS, 
No. 26 FRANKFORT STREET. 

1859. Ly^yy LIBRARY 



UNIVERSITY OF GEORGIA 
JUL 1 5 7007 



Entered according to Act of Congress in the year 1859, by 

HOWELL COBB, 

In the Clerk's Office of the District Court for tke Southern District of G-eorgia. 



TO THE 



MEMBEES OE THE GEORGIA BAR. 



mm m 



IS 



YERY RESPECTFULLY INSCRIBED 



BY ITS 



AUTHOR 



EEPORT OF THE COMMITTEE. 

To His Excellency Joseph E. Brown, 

Governor of the State of Georgia. 

Sir, — Having been appointed by your Excellency, in pursuance of a 
Resolution of the General Assembly of this State, assented to December 
11, 1858, to examine the Compilation of Statutes, with Forms, prepared 
by Howell Cobb, Esq., of the County of Houston, we now report to 
your Excellency, that we have carefully and minutely examined the Manu- 
script-copy of the entire Work referred to. This Work embraces all the 
Statutes of this State, of general interest, including the acts of the last 
session of the Legislature, and has various appropriate and convenient 
Forms, arranged under the Statutes to which they apply. We have no 
hesitation in reporting to your Excellency, the correctness, and the faithful 
execution of this Work, and that in our opinion it will not only be larger 
than the former Work of Col. Cobb, styled " Analysis and Forms," but it 
will be superior to it, in comprehensiveness, arrangement, and accuracy. 
Respectfully, your obedient servants, 

JOHN M. GILES, 
THOMAS P. STUBBS, 
June 24, 1859. JAMES A. PRINGLE. 



EXEOUTIYE OHDEK ON THE ABOVE REPOKT. 

Executive Department, Milledgeville, Georgia, 

July 6th, 1859. 

The Committee appointed to examine the new Compilation of the 
Statutes of this State, and Forms, prepared by Howell Cobb, Esq., of 
Houston County, having reported to me, that the Work is correctly and 
faithfully executed ; I do, therefore, in compliance with the Joint Resolu- 
tion, passed by the last General Assembly of this State, hereby subscribe 
for, and order, three thousand Copies of said Work, for the use of this 
State, to be paid for on delivery, at five dollars per Copj ; upon which 
said subscription, an advance of three thousand dollars is this day made. 

JOSEPH E. BFvOW:N^, 

Governor. 



PREFACE. 




Of all the secular pursuits in which men engage, there is not one better^J 
calculated to chasten the mind and impress it with correct and elevating 
sentiments, than the Law. The study of some of the sciences, th^' of 
Geology, for instance, is calculated sometimes to embarrass, sometimes to 
confuse the mind. Geology cannot harmonize its own discoveries with the 
inspired account of the Creation, and, therefore, causes the mind to doubt, 
perhaps to disbelieve. To him who is accustomed to look below the 
surface of things, and make his investigations philosophically, this only 
shows, (no matter what the pretensions may be,) either that the science 
itself is not perfectly understood, or has in it radical imperfections. The 
noble science of Law has connected with it no such embarrassing charac- 
teristics ; on the contrary, it is relieved from all such difficulties, for it 
accepts the Divine account as matter of Faith ; in other words, it recog- 
nizes the imperfection of all human knowledge. It is a simple fact, that 
from a Law Library may be arranged as complete a Code of Morals, and 
as perfect a Creed of Christian Faith, as would be satisfactory to the most 
exacting Professor of Religion, or the most orthodox Christian Church ; 
therefore no Lawyer properly imbued with the teachings of his Profession, 
can be an Infidel or a Skeptic. 

There are certain qualifications necessary to constitute a scientific 
Lawyer, to which we propose here briefly to allude ; these qualifications 
are both natural and acquired. — Firsts the person who intends to follow 
the Law as a Profession, must have, at least, a foir share of intellectual 
ability — capacity. No greater mistake can be made than to suppose that 
any man can become a Lawyer — there are, comparatively, but few who 
can make such an attainment. There are many pre-requisites necessary to 
qualify a good Lawyer ; and if a person possess, in abundance, all the 
others, and be deficient in capacity, he had better turn his attention to 
some other employment, for he never will be able to arrive at distinctiQii^ \\iVc 
in this. Secondly^ Cast of Mind. Supposing the person to be possessed fit 
sufficient capacity, yet if the mind be without the proper bias, turn, taste 
for philosophical research, patience to plod through the most exhausting 



8 PREFACE. 

and apparently, useless drudgery and toil, he cannot succeed. Thirdly^ 
admitting the possession of capacity and taste for the Law, the next quali- 
fication to which we refer, is that of Education, The Education must be, 
at least, good ; it should he collegiate and scientific. The Law is full of 
technicalities ; these are expressed mostly in Greek, Latin, and French ; 
therefore, it is easy to see that if the student has not a tolerable knowledge 
of these languages, he cannot become familiar with these terms, and conse- 
quently, never can be a scientific Lawyer. Fourthly^ Application. The stu- 
dent must consent to labor, for years, sleeplessly, untiringly, continuously; 
the task is difiicult, hard, but let him not be discouraged, for the reward 
bestowed is equivalent to the labor required — let him persevere, for when 
the day of triumph comes, as it assuredly will, it will leave nothing to be 
desired. 

There is no qualification more indispensable to a Lawyer, than good 
Moral Character — his Profession teaches, and the public demand this. 
Moral Character is settled by practices — habits, and therefore depends 
upon the individual himself. If a Lawyer be seen in places where he 
ought not to be seen, and be known to indulge in practices incompatible 
with the strictest Morality, he at once drops below the dignity of his Pro- 
fession, and sinks in public esteem. Nor does he meet the full amount of 
the obligations which are upon him, by abstaining from vicious and 
debasing practices alone, he must possess positive traits of character, . 
which are not only unmistakable, but which always, everywhere, leave 
their impress. He must love justice ; be careful to do no wrong ; be easily 
appeased ; ready to forgive ; generous to the needy ; kind to the poor ; in 
a word, high-toned and magnanimous in all his deportment. 

Another trait in a well-balanced character may here be stated. A per- 
fect Lawyer must possess a sufficient knowledge of our Holy Religion to 
understand its requirements, and to acknowledge its obligations ; the 
position which he occupies in society requires this. What does it signify 
that Toland, Bolingbroke, Morgan, Chubb, Gibbon, Plume, Voltaire, and 
many of their confreres possessed commanding talents, brilliant intellects ? 
While the literary labors of some of them are acknowledged to be valua- 
ble, the want of proper respect for Religion assigns to them a place, in 
the estimation of the virtuous and the good, that is by no means enviable. . 
Tliese truly great men, (in a literary sense,) employed their intellectual 
powers in the most mischievous of all causes — the cause of infidelity. 
What position do they now occupy in the estimal^ion of the intelligent 
world ? The race to which they belonged would have been better ofi* had 
they never lived, and every succeedhig day adds to the degradation which 
attaches to the character of each. Lifidelity and skepticism ever envelop 
their votaries in blight and mildew. 

, There is no one qualification necessary to command success at the bar 
more important than that of oratory ; therefore, to speak well^ — eloquently, 
shoiU^l be the constant aim of the student. To accomplish this, he may 



PREFACE. 9 



have to accustom himself to the most rigid discipline. To some extent, 
the power of oratory is natural, but most of the qualifications necessary to 
a perfect orator may be acquired. In illustration of the idea which we 
here wish to present, we refer to the case of Demosthenes. Speaking of 
this great orator, Rollin says: "lie had a w^eak voice, a thick way of 
\speaking, and a very short breath ; notwithstanding which, his periods 
Were so long that he was often obliged to stop in the middle of them for 
i^|3spiration ; this occasioned his being hissed by the whole audience. He 
ventured to appear a second time before the people, and was no better 
received than before." This would seem to be sufficient to overwhelm 
thej most courageous; but Demosthenes found a friend in Satyrus, who, 
perceiving his merit through his failures, came forward with those advices 
whi<^h were calculated to re-assure him, and which resulted in his complete 
success. "His efforts to correct his natural defect of utterance, and to 
perfect himself in jDronunciation, (the value of which his friend had made 
him understand,) seem almost incredible, and prove that industrious per- 
severance can surmount all things. He stammered to such a degree that 
he could not pronounce some letters— among others, the first in the name 
of the art he was studying, rhetoric; and his breathing was so short that 
he !!ould not utter a whole period without stopping. He overcame these 
obstacles, at length, by putting small pebbles into his mouth, and pro- 
nouncing several verses in that manner, without interruption, while walk- 
ing and going up steep and difficult places, so that at last no letter made 
him hesitate, and his breath held out through the longest period. He 
went, also, to the sea-side, and while the waves were in the most violent 
agitation he pronounced harangues, to accustom himself, by the confused 
noise of the w^aters, to the roar of the people and the tumultuous cries of 
the public assemblies. He took no less care of his action than of his 
voice: he had a large looking-glass in his house, which served to teach 
him gesture, and at which he used to declaim before he spoke in public. 
To correct a fault which he had contracted by an ill habit of continually 
shrugging his shoulders, he practised standing upright, in a kind of very 
narrow^ pulpit or rostrum, over which hung a halberd, in such a manner 
that if, in the heat of action, that motion escaped him, the point of the 
weapon might serve, at the same time, to admonish and correct him." 
After Demosthenes had "carried the art of declaiming to the highest 
degree of perfection of which it was capable," and " when he was asked, 
three several times, which quality he thought most necessary in an orator, 
he only answered pronunciation^ and, by making that reply three times 
successively, insinuated that that qualification was the only one the want 
of which could be least concealed, and which was the most capable of 
concealing other defects; and that pronunciation alone could give consid- 
erable weight, even to an indifferent orator, wh'en without it the most 
excellent could not expect the least success." '^o one need be told that 
the civic triumphs of Demosthenes were more brilUant, lasting and 



^^^ 

.:?/•* 



10 PEEFACE. 

valuable, than the military achievements of the distinguished pupil of 
Aristotle: while the triumphs of the one are traditioually familiar, to 
become acquainted with the deeds of the other we must resort to the 
libraries of the learned. The student should study well the character 
of this unequalled Declairaer; and, although frequent failures may mark 
his first efforts, let him not become discouraged, for success will finally 
reward perseverance. After all, he may not become a Forsyth, a Berrien, 
a Lumpkin; usefulness, success, distinction, does not require that he 
should. 

The Practice of the Law brings with it many Professional Obligations, 
and if much care be not observed, the desire for success will betray the 
young Practitioner into the non-observance of these engagements. Suc- 
cess in the Practice is very desirable, very enchanting, and will mislead 
the beginner if he be not very careful; therefore, he should be ever 
awake to Professional accountability, and preserve it inviolate ; remem- 
bering that nothing can excuse, palliate, or justify, its violation. Profes- 
sional engagements, although difiicult to specify, will present themselves, 
at every turn, in the Practice — they are pro23erly met by a liberal and 
high-minded course of conduct. 

A Judge of Laitn. — It becomes us to speak guardedly of the character 
and qualifications of a Judge, because we may not have a proper concep- 
tion of this character, and these qualifications. He should, we think, be 
kind and conciliating — for in the discharge of his duties, he will find many 
occasions which will require the exercise of the tenderest sensibilities of 
human nature — if, on the contrary, he be overbearing and tyrannical, no 
talents, however brilliant, no learning, however varied and extensive, can 
justify the act of trusting him with power. He should be patient; with- 
out patience, as a marked trait of character, it is impossible to have the 
qualifications which should distinguish a Judge. A Judge should be pa- 
tient to hear all that can be said, which would lead to the discovery of 
truth — he should be indulgently patient with one accused of crime. He 
should be distinguished for firmness; we do not mean unreasonable 
obstinacy, but intelligent firmness, so that after having heard patiently 
he may decide properly and maintain the decision firmly, no matter how 
far it goes, should it extend even to the forfeiture of human life. A Judge 
should be eminent for legal learning, distinguished for his attachment to 
the profession, and remember that it requires the constant study, the pro- 
foundest thinking of the longest life, to become a proper administrator of 
the law. 

When the writer was a much younger man than he is now, he had the 
weakness to suppose that he could administer the law as a Judge ; expe- 
rience has served to convince him that he was not only not qualified then^ 
but that he is not qualified now^ for the discharge of the duties of this 
high and very responsible ofiice. 

The Author has inscribed this volume to the members of the Georgia 



PREFACE. 11 

Bar ; the only embarrassment he feels in doing this, arises from the fact 
that the offering is not more worthy of the acceptance of those to whom 
it is made. 

More than thirty years have gone into the past, since the Author was 
admitted to the Practice of the Law ; at the time of his admission he was 
without either fortune or friends, but his poverty and obscurity did not 
operate against him; his admission is to be attributed more to the gene- 
rosity of the fraternity with which he sought association, than to his prepa- 
ration for it. During the whole of this period, the unabated kindness of 
his Professional Brethren has been manifest; it has served to cheer and 
encourage him in many of the uncertain and arduous struggles Avhich have 
crowded a very laborious life ; and his success (if he has attained success) 
is due, very much, to that kindness. Pie feels no difficulty in saying, that 
should misfortune overtake him, and he become incapable of labor, it is 
to the Members of the Bar he should apply for relief. 

EXPLAIvTATlOK. 

The principal difficulty with which the Compiler has had to contend in the 
preparation of this work was, that if much care were not taken, it would 
be too large ; he has, therefore, been compelled to omit much, which 
under other circumstances, he would gladly have included. A reference 
to the decisions of the Supreme Court was very desirable, but to do this 
would be to encounter the very difficulty which it was absolutely neces- 
sary to avoid. 

No Statutes are included but such as are general and public ; these have 
been transcribed from the authorized publications. Whenever the Com- 
piler has discovered an error, (affecting the sense and meaning of the 
Statute,) he has suggested the correction ; these corrections will be ascer- 
tained by their being inserted between brackets, in italic letters^ thereby 
leaving the statute in its original form. 

The numbering commences with the chapter and is continued through- 
out it. This directs the attention from the provisions of one Statute to 
those of another, on the same point. 

Nothing assists more in arriving at the correct meaning of a sentence, 
otherwise ambiguous, than proper punctuation. Almost every writer 
adopts a plan peculiar to himself; the Compiler has followed this rule, in 
the preparation of this work ; he indulges the hope that his plan will 
answer the object it was intended to secure. 

Explanatory and Marginal Notes have been used. The Marginal Note 
expresses the meaning of the section of the Statute, opposite to which it 
is found. The Explanatory Notes, (in the body of the work,) generally, 
direct the Officer how his duty is to be performed; they are intended to 
make plain what otherwise, in some instances, ijiight be perplexing. 

The Forms and Precedents presented, are deemed sufficient, and although 



12 PREFACE. 

the experienced practitioner may have no need of them, yet the youyig 
practitioner, the ministerial officeivand the people at large, may sometimes 
find them useful. 

This volume is the result of the labor of years; it has been submitted, 
while in manuscript, to the revision of a committee appointed by Governor 
Brown, in accordance with a resolution of the Legislature Of 1858. To 
these gentlemen is to be attributed much of the accuracy of the work. 
The intercourse between these gentlemen and the Compiler has been con- 
stant and agreeable, and, to him, interesting and profitable. 

The Compiler cannot permit this occasion to pass without expressing to 
the Members of the Bar, and the people at large, his gratitude for the 
kind and indulgent manner in which a former publication, (Analysis and 
Forms, which this is intended to supersede,) has been received, and be- 
speaking for this their approval. 

If this volume, unpretending as it is, shall answer the purposes for which 
it was prepared, the object of the Compiler will be realized, and he will be 
content. 

Perry, Sept.^ 1859. 



CHAPTER I. 



JUDIOIA-RY. 



SUPREME COURT. 

An Act to carry into effect that part of the first section of the third 
article of the Constitution, which requires the establishment of a 
Supreme Court for the Correction of Errors; and to organize the same; 
and to regulate the proceedings thereof. — Approved December 10, 1845. 

1. Sec. I. ^e^l(e?^ac^e(^,That,inpursuanceof the first section of the third Supreme 
article of the Constitution, there shall be, and it is hereby established, a ^n^hed^ " 
Court for the Correction of Errors, to be called the Suj^reme Court of the 

State of Georgia. The said Court shall consist of three Judges, who shall Judges, 
be elected at the present session of the General Assembly: one for the 
term of six years, one for the term of four years, and one for the term of . 
two years; during which terms they shall respectively hold their offices, 
unless sooner removed, in the manner pointed out by the Constitution. 
No person shall be eligible to the office of judge unless he shall have been Who eligible 
duly admitted and licensed to plead and practise in the courts of law y^ Judge. 
and equity, in this State, ten years, at least, prior to his election. The 
governor shall, within twenty days after the election of said judges, com-^'^^^ com mis- 
mission them, respectively, for the terms for which they shall have been 
elected. In case of the death, resignation, or removal from office, of any 
of the said judges, the governor shall appoint and commission some fit ^^fl"j^^ ^^^ 
and proper person, to fill such vacancy until the meeting of the General 
Assembly next after such vacancy, when the General Assembly shall fill 
the same. And if any such vacancy occur during a session of the Gene- 
ral Assembly, the same shall be filled at such session. Every judge of said ri. ^ ^ 
court Avho shall be elected after the present session of the General As- 
sembly, (except where he is elected to fill a vacancy,) shall hold his 
office for and during the term of six years, and shall be commissioned 
accordingly by the governor. 

2. Sec. III. It shall be the duty of all the jfidges of said court to j^^cyes must 
attend at each term of said court ; but if, from providential cause, any one all attend, 
of said judges cannot attend a court, such court may be holden by two 

judges. If only one judge shall attend a court, it shall be his duty to . ^^^^ \t^d 
open the court, and to adjourn it to a day not more than two days beyond jjj* Y\o\v to j 
the regular term, at which time, if two judges do not attend, the court proceed. i 
shall in that case be adjourned to the next regular term. " 

3. Sec. IV. The supreme court shall hear and determine, at the first Causes must 
term of each court, all such cases in law and equity as may be brought 1>« determined 
from any of the superior courts of this State within the district, as created ^ ^^ ^^^' 
by this act, for which said supreme court is holden. All causes of a 



14 JUDICIARY.— SUPKEME COURT. 

Causes bow criminal or civil nature may, for alleged error in any decision, sentence, 
carried up. judgment, or decree, of any such superior court, be carried up, from the 
counties in the respective districts aforesaid, to the judges of the supreme 
court, at the respective terms thereof, for such district, to be by the said 
Criminal supreme court revised and determined. Any criminal cause may be 
causes how carried up to the supreme, court on a bill of exceptions, in writing, speci- 
■ fying the error or errors oi law complained of, to be drawn up by the 
Bill of excep- party, his counsel or attorney, [see 41,] within four [see 21] days after the 
tions how ti'lal of the cause in which the decision or sentence has been had; and be 
formed. submitted to the judge of the superior court before whom such criminal 
Civil causes cause may have been tried, to be by him certified and signed. Any cause" 
carried up in of a civil nature, either on the law or equity side of the superior court, 
like manner, j^^j^y [j^ w^q manner be carried to the supreme court, on a bill of excep- 
tions, specifying the error or errors complained of in any decision or judg- 
Withinwhat ment, to be drawn up by the party complaining thereof, his counsel, 
time. solicitor, or attorney, within the time aforesaid, [see 21,] and submitted 
to the judge before whom the cause may have been heard, to be by him 
Factsnotto be certified and signed, [566 42.] But in no case shall the facts be contro- 
controverted. verted in the supreme court so as to require attendance of any witness 
. . or witnesses, under any pretence whatever. Said supreme court shall 

tbeR^ecor^^ hear and determine upon matters contained in the transcript of the record 
of the cause, and not otherwise. Upon exhibition of any such bill of 
Judge must exceptions to the judge of the superior court, it shall be his duty, if such 
F^^ t" s ^^^^ ^^ exceptions be true and consistent with what has transpired in the 
cause before him, to certify and sign the same. Such bill of exceptions 
Supersedeas, shall operate as a supersedeas to the judgment, sentence, execution, or 
decree, of the court below, in all cases where bond may be given or affi- 
davit filed, as hereinafter provided. If in civil cases, either in law or 
Party com- equity, the party complaining of error shall, within four days [see 23] 
plaining must after the term at which the exceptions were taken, pay all costs which 
give Bond and jj^^y have accrued, and, either personally or by his agent, solicitor, or 
civil cases. " attorney in fact or at law, give bond with security to be approved of 
by the clerk of the superior court, and conditioned to pay the eventual 
In criminal condemnation money and all subsequent costs; and if in a criminal case, 
cases must en- ^^.j^gj.g ^Yiq offence is by law bailable, the party complaining of error shall 
^^^'?-7-?r.nt^°^' enter into recoOTizance with security, to be in like manner approved, 
conditioned for the appearance, in person, oi such party complaining, to 
Where the abide the final order, judgment, or sentence, of said court; and if the 
i.^Tii^^^^^ offence be not bailable, or if the party be sentenced to imprisonment in 
persedeasmay ^^^® penitentiary and be unable to give security as required, the judge 
be ordered, of the superior court may order a supersedeas, at the time of certifying 
and signing the bill of exceptions. When such bill of exceptions shall 
. -^P^^^^.^p.,, have been signed and certified by the judge of the superior court, and 
lf^T?^£.?.f;^L such bond Avith security shall have been ^iven, or recoo-nizance with 
must be given, security entered into and cost paid, notice oi the signing oi sucn billot 
exceptions shall be given, if in a criminal cause, to the attorney or solicitor 
general, and in civil causes, in law or equity, to the adverse party or his 
counsel, within ten days after the same shall have been done, and shall be 
filed in the clerk's office where such bond or recognizance has been given. 
Copy of no- immediately thereafter, and on a copy of such notice being served by a 
tice must be sheriflP, constable, or attorney of the superior court, and filed in the clerk's 
served. office with the bill of exceptions, it shall be the duty of the clerk of the 
the Record superior court below to certify and send up to the supreme court a corn- 
must be sent plete transcript of the entire record of the cause below, duly certified 
up. under his hand and seal of office, and also the bill of exceptions, within 



JUDICIARY.— SUPREME COURT. 15 

ten days after he shall have received the original notice, with the 
return of service thereon. 

4. Sec. V. The supreme court shall proceed at the first term, unless Cases must 
prevented by providential cause, to hear and determine each and every ^^^A^jf'^f*! 
cause, which may in manner aforesaid, be sent up from the court below, ^term. 
upon the record*^ and bill of exceptions, on the grounds therein specified 

and on no other grounds. Upon the decision of the supreme court, on How the de- 
matters of law or principles of equity, which may arise in the bill of ex- visions of the 
ceptions, which decision shall always be in writing, [and be delivered by be^^ade^and 
the judges of the said court seriatim^ except in cases where they are certified, 
unanimous, repealed — see 55,] the court shall cause to be certified to the 
court below, such decision and award, such order and direction in the 
premises, as may be consistent with the law and justice of the case. j)gQjgjoj^ 
Which decision, so rendered and ordered, and direction so awarded, shall ^^jj^^^^^.^ ^^ 
be respected and carried into full effect by the court below. If the de- court below, 
cision and judgment of the court below be for any sum certain, and be 
affirmed in the supreme court, the plaintiff may, in the superior court, 
enter judgment against the defendant and his securities for the amount of Damages in 
principal, interest and costs, as shall have been confessed or found by a ^^i'i"«^\. cases 

-If* W h P l"! TOT* ft 

jury, and ten per cent, damages on the principal sum, and have execution ^^^^^^^^ ^^^ 
immediately after the decision of the supreme court, so certified as afore- 
said : Provided^ that if any one or more of the judges of the supreme pj.QyjgQ 
court shall certify that in his or their opinion, such cause was not taken up 
for delay only, then and in such case, the damages shall not be allowed. 
Judgments in the courts below, if affirmed, shall not lose any lien or 
priority, by reason of the proceedings in the court above. 

5. Sec. VI. If any judge of the superior court shall refuse to certify Judge, Sker- 
a bill of exceptions when properly tendered, or if any clerk shall fail or iff or Clerk re- 
refuse to send up the transcript of the whole record, in any cause, ^c- J[™^, ^^^^^^ 
cording to the provisions of this act ; or he, or any sheriff, shall refuse or damus may is- 
neglect to perform any duties imposed upon him by this act, said supreme sue against 
court, while in session in any district in this State, may issue a writ of him. 
mandamus to such officer, and enforce obedience thereto, if necessary, by 
attachment. And in case that such refusal by any such officer have de- 
layed the party applying for or tendering a bill of exceptions, as aforesaid, 

beyond the time limited in the foregoing part of this act, he shall not 
thereby lose his remedy, but may proceed as if the time limited had not 
expired, 

6. Sec. VII. The sheriff of the county wherein the supreme court Sheriff of the 
is holden, or his deputy, shall attend the sessions thereof, and obey all ^?^'^^J^ 
lawful orders, enforce all lawful commands, and execute all lawful processes ^^^^^^g. ^\^ 
of said court ; and for the service of any process or order of said court, he pees. 
shall receive the fees allowed for like service in the superior courts, to be 

taxed and paid in like manner. 

7. Sec. YIII. Each of the said judges of the supreme court shall Salary of each 
receive a salary of two thousand five hundred dollars per annum, to be judge during 
paid as the salaries of the iudo-es of the superior courts are now paid. The ^^^ ^.^"*^?,^' 
amount oi said saJ#ry shall not be increased or dimimsnea during tne con- 
tinuance of such judge of the supreme court, in office ; and no judge 

shall receive any other perquisite, reward, or compensation, than the 

amount of his salary. Each and every judge of the supreme court shall, Judges to be 

before the governor of the State, and prior to his receiving his coramis- sworn. 

sion, take the oath to support the constitution, and other oaths, now by 

law required of the judicial officers of this State. 

8. Sec. IX. The said supreme court shall appoint some fit and proper Appointment 



16 \ JUDICIARY.— SUPREME COURT. 

and removal person, as clerk thereof, who shall hold his appointment for six years, 
of clerk, unless removed by said court upon complaint made and cause shown, for 
incapacity, improper conduct or neglect of duty. Said clerk shall keep an 
Where he q-^qq ^t the seat of government, in one of the departments of the capitol, 
" fice. where all books, records and archives, and the seal of the said court, shall 
remain. He shall attend all the sessions of said court, and obey all lawful 
His general orders thereof; he shall keep, in substantial-bound books, fair and regular 
duties. minutes of the proceedings of said court ; a record of all its judicial acts ; 
a docket of its causes, and such other books as said court may from time 
to time order and direct. He shall certify when required, upon payment 
of his fees, all proceedings of the said court, in the manner now in use in the 
Transcript superior courts of this State. And the record and minutes of said supreme 
of the records, court, and copies thereof, shall be evidence, in the same manner and under 
evi ence. ^Yiq same circumstances, as those of the superior courts now are ; said 
Clerk may supreme court being, to all intents and 23urposes, a court of record. The 
appoint a dep- said clerk shall be authorized to appoint a deputy or deputies, in his 
uty« discretion, he being responsible for the faithful performance of their 

duties. 
If the seen- 9. Sec. X. If during the pendency of any cause in the supreme court 
rity becomes ^]^g security, taken on the removal of said cause to the supreme court, 
new security ^^^^^ become insufficient or inadequate, by reason of removal from the 
maybe giveii. State, insolvency or otherwise, it shall be the duty of the court, so certi- 
fying said cause, on application on oath, setting forth the facts, showing 
the inadequacy of said security, from insolvency or otherwise, to require 
additional and other security, unless the appellant shall make an affidavit, 
Apellant "i^mder the seventeenth section of this act. And if the appellant shall fail or 
failing to give refuse to give such additional security, or make and file such affidavit, the 
other securi- court below shall certify this fact to the supreme court, whereupon said 
ty, case to be g^.^^^ gi^^^H -^^ dismissed at the appellant's costs, and the judgment in the 
court below shall be affirmed with costs. 
Attorney 10. Sec. XI. The said clerk shall be entitled to the same fees as clerks 

bound for of the Superior Courts in this State, to be taxed as part of the costs, and 
costs. fQj. ^yhicii the attorney of record shall always be bound. 
Appointment ^^' ^^^- XII. Some fit and proper person shall be elected by the judges 
of Reporter, of said court as reporter, who shall hold his office during the term of six 
years, unless sooner removed by the court, and shall receive for his ser- 
vices a salary from the State, of one thousand dollars j^er annum. Saidre- 
His duty, porter shall attend all the sessions of said court, and report, in a proper and 
professional manner, all the decisions there made, with the reasons there- 
for, [^ctnd he shall not^ during his service as reporter^ ap2^ear as counsel or 
act as attorney, in any case, in any court of this State. — Repealed, see 
19.] The reporter shall from time to time publish, in good and substan- 
Booksof Re- ^jj^j forms, the reports so made, as aforesaid ; and if at any time he shall 
published, i^^g^^ct to publish, within four months after sessions for each year have 
closed, the decisions of that year, he shall forfeit one fourth of his salary, 
Forfeiture for for that year, and another fourth for every additional month's delay ; Pro- 
neglect. vided, that if the judges of said court, or a majority of them, shall certify 
that such delay was not from any fault or neglect oftthe reporter him- 
self, or those under his control, such forfeiture shall not be incurred. 
The reporter shall also be allowed the copyright. Aoid provided further. 
Copies to be that he furnish, free of expense, and well bound, one copy of said reports 
furnished, ^o each judge of said court, for the time being; one copy to the clerk of 
said court, to be kept in his office as public property ; twenty-five copies 
to the State, to be delivered to his excellency the governor, as soon as 
may be ; said twenty-five copies to be disposed of as the General-Assembly 



JUDICIARY.— SUPREME COURT. • 17 

may direct ; and a copy to each clerk of the superior court for each 
county in the State, to be kept in his office free for the perusal of any person. 

12. Sec. XIII. The clerk and reporter of said court, before enter- Clerk and Be- 
ing on the duties of their respective offices, shall be sworn to the faithful P°^*^^'s ^^*^^- 
discharge of their duties, and take all other oaths prescribed by law 

for civil officers. 

13. Seo. XIY. The judges of said supreme court shall have power Powers of 
to establish rules of practice, and to regulate the admission of attorneys t^e Court in 
in said supreme court, and to award all such process as may be neces- certain cases, 
sary to enforce obedience to their orders and judgments, and as are usual g^al of the 
in other appellate tribunals ; and, also, to establish and procure a seal for Court, 
said court. 

14. Sec. XV. In case plaintiff in error shall fail to cause the tran- Plaintiif fail- 
script of the record to be filed with the clerk of the supreme court, at ing to file the 
the place of holding said court, by the third day of the term next sue- ^ the cleTk 
ceeding the time of granting the supersedeas, and the adverse party court shall 
shall file with the clerk of the supreme court, a certificate of the granting affirm the 
of such supersedeas, signed by the clerk of the Superior court wherein judgment be- 
the cause is depending, then it shall be the duty of such supreme court ^^^\ 

to affirm the judgment below, on such certificate. 

15. Sec. XVI. It shall be the duty of the attorney or solicitor-general Att'y and Sol. 

of the iudicial circuit wherein any criminal cause i» tried, and which may p^'^: ^"^* ^*" 
■, T '^ . /. ' -I r T ij^ T J. • 1 • ii tend, bupreme 

be taken up m manner aforesaid, to appear and attend to said cause m the court. 

supreme court.' — [I^orfees see 29.] 

16. Sec. XVII. Whenever a party shall not be able to give security. Party unable 
lie shall file an affidavit, stating that he is unable from his poverty, to give *« ^^^^g^^^^^^ 
the security for the eventual costs and condemnation money, and that his fiie^ affidavit, 
counsel has advised him that he has good cause for a writ of error ; and 

upon filing the same in the clerk's office, he shall be entitled to all the 
privileges which he would have had if he had given the security and paid 
the costs, as required by this act, [and see 52.] And w^hen any party, in pj[|.°y^^^^g^g 
any civil cause, residing out of the county in which it may be tried, shall Supersedeas is 
not be desirous of obtaining a supersedeas, he shall be entitled to have his not sought, 
cause carried up to the supreme court, under the provisions of this act, need not give 
without giving bond or making affidavit, as herein-before provided ; the security, 
adverse party being at liberty to j)roceed with execution. 

An Act amendatory of the act of the General Assembly, organizing the 
Supreme Court, so far as to make it discretionary with Plaintiffs in Error, 
whether they will include as parties Plaintiff, Securities on Appeal; on Not neces- 
Injunction Bonds and Writs of 'Kyyoy.— Approved Dec. 22, 1847. sary to make 

17. Sec. I. Be it enacted, That from and afler the passage of this act, ty'in cJrry^na 
it shall in no case be considered as necessary to join with the parties to the ^p cases. 
suit in the superior court, carrying a case therefrom up to the supreme 

court, by bills of exceptions and writs of error, the security on aj)peal, or 
on any injunction bond. 

18. Sec. II. No writ of error shall be dismissed, or delayed, in its hear- ^^}^^^^\^^ 
ing and decision, where the parties to the writ or declaration below, are nece'ssarT^ 
included in said writ of error. 

An Act to amend the twelfth section of an act, entitled " an act to carry 
into effect that part of the first section of the third article of the Con- 
stitution, which requires the establishment of a Supreme Court for the 
Correction of Errors, and to organize the same, and to regulate the pro- 
ceedings thereof," assented to on the tenth day of December, eighteen 
hundred and forty-five. — Approved Dec. 24, 1847. 
2 



18 JUDICIARy.-.SUPREME COURT. 

Reporter 19. Sec. I. Be it enacted^ That from and after the passage of this act, 

may practice, so much of said recited section as declares that the reporter of said com't, 

shall not during his services as reporter, appear as counsel, or act as attorney, 

in any case, in any court in this State, be and the same is hereby repealed. 

Salary paid ^^- Sec. II. The reporter of said supreme court shall be entitled to 

quarterly, receive his salary quarterly, as other State officers, and be authorized to 

appoint an assistant reporter, such appointment to be submitted to and 

^J.^PP*! approvedby the judges of said court, and entered upon the minutes, either 

Eeporter andi^^ term or vacation. And the said reporter, or his assistant, shall attend 

Assistant's each term of the court, unless prevented by providential cause, or relieved 

duty. therefrom, by leave of absence, by the judge, [judges^ 

Sec. III. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

At^ Act amendatory of the act approved the tenth of December, eight- 
een hundred and forty-five, organizing a supreme court for the cor- 
rection of errors, in relation to bills of exceptions ; giving of bond by 
the party taking up ?l case, and directory of the duty of the clerk, as to 
transcripts accompanying cases. — Approved Dec. 29, 1847. 
:30 days o-iven ^1- Sec. I. Be it enacted^ That from and after the passage of this act, 
^ithiQ which that so much of the act of which this is amendatory, as requires bills of 
to present exceptions, in both civil, criminal and equity cases, to be drawn up and 
ExceDtion submitted to the judge before w^hom such cause was tried, within four 
days after the trial thereof, be and the same is hereby altered and 
amended so as to allow them to be drawn up and submitted for signatur.e 
and certification by the judge, within thirty days after the close of the term 
in which said cause was heard. 
Eecord of 22. Sec. II. With a view to lighten the costs upon parties in said court. 
Court below that the transcripts of the record, from the court below, shall not be re- 
corded in the ^^^'^^^ ^7 ^^ clerk of the supreme court, but shall be filed up carefully, by 
Sup' me Court, number of the proper term of the court, in ^vhich the cause, in which it 

was used, was tried. 
30 days allow- 23. Sec. III. So much of the fourth section of the act of which this is 
ed for pay- amendatory, as prescribes four days within which cost shall be paid and 
mentotCos «? i^qj^^ given, be and the same is hereby extended to thirty days. 

An Act to curtail the labor of the Clerk of the Supreme Court, and to 
reduce the Cost in said Court, and to authorize amendments in said 
Court. — Approved Feb, '^Z.,V^^^. 
Keraitter. ^^* ^^^' ^ ' "^^^ remitter shall consist of the judgment of the 
supreme court and nothing more. 
No Fees but 25. Sec. V. The clerk of the supreme court shall make no charge but 
for actual for services actually performed ; and for services performed, he shall be 
services, allowed the same costs as are allowed by law to the clerk of the superior 
court. 
Bill of excep- ^6. Sec. VI. All bills of exception and the copies thereof, shall be 
tions amend- amendable by order of the supreme court, so as to be made to conform to 
able. the record of the cause.— -[/i^ee 31.] 

An act in relation to the Supreme Court of this State. — Approved Feb. 

23, 1850. 

Whereas^ As it is essential to the proper administration of the laws, 
that the sessions of the Supreme Court be held at such places as will afibrd 
the Judges the use of competent libraries, which is not the case under ex- 
isting laws, for remedy whereof — 



JUDICIAEY.— SUPREME COURT. 



19 



Solicitors- 
General. 



How paid. 



27. Sec. I. J^e it enacted^ That all bills of exceptions, writs of error writs, &c., 
and citations, in or from the supreme court, shall he amendable without amendable, 
delay or cost, in conformity to the record, or cause below. 

An Act to amend the several acts in relation to the Supreme Court, so far 
as they relate to the Reporter and Assistant Reporter. — Approved Feb. 
23, 1850. 

28. Sec. I. Be it enacted^ That it shall not be lawful for the reporter Argument of 
of the decisions of the supreme court of this State, or his assistant, in Counsel not 
any case hereafter, to incorporate into, or publish with the decisions of ^^ -^^ ^^^■^_ 
said court; or to insert into any volume of said reports, any argument, lishedde- 
or brief of counsel, farther than a simple statement, or brief of the cisions. 
authorities referred to by said counsel, and the points made. 

An Act to compensate Solicitors-General for services rendered the State in 
the Supreme Court, in Criminal cases. — Approved Feb. 23, 1850. 

29. Sec. I. Be it enacted^ That the soUcitors-general of the several Fees of At- 
ludicial circuits of this State, for the rendition of official services in the ^^^""^y ^^^ 
supreme court, m crimmal cases, shall receive the ioUowmg lees, to wit : — 
In all cases where the punishment is less than confinement and labor in the 
penitentiary, the sum of fifteen dollars ; in all cases involving punishment 
by confinement and labor in the penitentiary, thd sum of thirty dollars ; 
and in all cases where the punishment is death, the sum of fifty dollars. 

30. Sec. II. Upon the presentation of the certificate of the clerk of the 
supreme court, of the trial of the case or cases, and the rendition of the 
service, the governor shall draw his warrant in favor of the solicitor or 
solicitors, in accordance with the provisions of the first section of this act. 
Any law to the contrary notwithstanding. 

AlK Act to regulate the Practice of the Supreme Court, and of the Superior 
Courts of this State, and for other purposes. And to relieve suitors in 
the Supreme Court. And to change the districts, times and places of 
holding the Supreme Court. — Approved Jan. 22, 1852. 

31. Sec. I. Be it enacted.^ That when the original writ of error, orig- 
inal citation and notice, and the original bill of exceptions, shall be 
filed and served within the time prescribed by law, no cause pending in the 
supreme court shall be dismissed, but any other error or defect shall 
be amended instanter. 

32. Sec. II. That the original bill of exceptions, after being filed in the 
clerk's office of the superior court, shall be copied by the clerk thereof, and 
the copy retained by him and filed in office, and the original sent up, 
with the papers in the cause. 

33. Sec. III. That the law which requires the decisions of the judges 
of the supreme court, to be handed to the reporter, to wit : the first 
section of an act " to curtail the labor of the clerk of the supreme court, 
and to reduce the cost in said court, and to authorize amendments, in 
said court," approved February 23, 1850, be and the same are hereby 
repealed. And hereafter said decisions shall be handed to the clerk, so soon 
as written out, and shall immediately be recorded by him, and then turned 
over to the reporter. 

34. Sec. IV. That when any clerk of the superior courts shall fail, re- 
fuse, neglect or omit to certify and send the whole, or any part, of the papers 
in any cause certified to the supreme court, it shall and may be lawful for 
the party, or his or her attorney, to make oath thereof; and upon application 
to any one of the justices \^iudges\ of the supreme court, either in term-time 



What Amend- 
ments may be 
made and 
•when. 



Original Bill 
of Exceptions 
to be sent up ; 
copy retained. 

Opinions to 
be recorded 
by Clerk, 
and then 
turned over 
to Reporter. 



Proceedings 

where Clerk 

refuses to send 

up complete 

Record. 



20 JUDICIARY.— SUPREME COURT. 

or vacation, a rule nisi, shall issue, under the order of said justice or court, 
requiring said clerk to show cause Avhy said papers should not be certified 
and sent up ; and to show cause why he should not be punished as for a 
contempt, for his refusal, failure, neglect, or omission of duty ; which rule 
shall be returned to the next, or then present term of the court for the 
district to which said clerk belongs, under such rules and regulations, and 
upon such service, as said justice or court, in vacation or term-time, may 
direct. And upon the return of said clerk being made, the said court 
may pass such order in the premises, as may seem right and proper : 
Proviso. Promded^ that no punishment for contempt, as aforesaid, shall exceed that 
now prescribed by law for contempts. 
Bill of Ex- 35. Sec. Y. That when any party to a cause desires to except to the 
ceptions must decision of any judge of the superior court, and he shall resign, or his 
^^^?f. ^y "^ term of oflSce shall expire before the expiration of the time Avithin which 
Judge, "^ the bill of exceptions should be tendered by law, the said judge shall be 
althoagh out considered so fixr an officer capable of certifying, or refusing to certify the 
of Office. same, and subject to all the responsibihties for such refusal, as though 
wh T do-e^^^ were in office. And when any judge, as aforesaid, shall die, or remove 
may die or re- beyond the limits of the State, before the expiration of the time afor^e- 
move from the said, and the party complaining should not have, nor tendered, his said bill 
State, what of exceptions, the right of said party to his said exceptions, shall not there- 
may be done. ^^^ ]^g j^g^^ ^^^^ ^^ same verified by the affidavit of two attorneys of the 
court, within the time prescribed for tendering bills of exceptions, shall 
entitle said cause to be heard in the supreme court, as though the same 
had been certified by the presiding judge. 
Cases re- 36. Sec. YI. That when any cause shall be sent back to the superior 

turned, when courts, by the supreme court, the same shall be in order for trial at the 
for trial. gj^.g^ term of said superior court, next after the decision of the said su- 
Continu- pi'eme court. And where either party may have exhausted their continu- 
ances in Supe- ances on the appeal, the said superior courts shall have full power and au- 
rior Courts, on thority to grant one continuance to said party, as the ends of justice may 
appeal. require. 

Operation of ^^^ ' ^^^' ^^' That all causes in either the supreme, or the superior 
this act. courts of this State, may be tried under the provisions of this act, or of those 
of which it is amendatory, until the first day of May next, when this act 
shall repeal all laws and parts of laws, militating against any of its provi- 
sions. 

An Act to alter and amend an act passed 10th day of December, 1845, 

to carry into effect that part of the first section of the third article of 

the Constitution, w^hich requires the establishment of a Supreme Court 

for the Correction of Errors, and for other purposes ; so as to reduce 

the number of places for the sessions of said Supreme Court, and to 

prescribe the duty of the Clerk of said Court, in certain cases ; and for 

other purposes. — Approved Dec. 22, 1855. 

Times and 38. Sec. I. JBe it enacted^ That said supreme court shall be holden 

Places of hold- at the times and places following, to w^it : — On the second Monday in 

ing bessions. January, and second Monday in June, in each year, for the first district, 

to be composed of the Eastern \Brimsvnck\ and Middle judicial circuits, 

at Savannaii. On the fourth Monday in January and the fourth Monday 

in June, in each year, for the second district, to be composed of the 

Macon, South-Western \Patcmlc(\ and Chattahoochee judicial circuits, at 

Macon. On the fourth Monday in March and the second Monday in 

August, in each year, for the third district, to be composed of the Flint, 

Coweta, Blue Ridge, \Tallapoosci\ and Cherokee judicial circuits, at At- 



JUDICIARY.— SUPKEME COURT. 21 

lanta. On the fourth Monday in May and fourth Monday in ^NTovember, 
in each year, for the fourth district, to be composed of the Western and 
2^orthern judicial circuits, at Athens. On the second Monday in May and 
I^ovember, in each year, for the fifth district, to be composed of the Oc- 
mulgee and Southern judicial circuits, at Milledgeville. 

39. Sec. II. That it shall be the duty of the clerk of the said supreme How Clerk 
court to arrange the cases, on the docket of said court, by circuits; and must arrange 
it shall also be his duty, to give notice in one of the newspapers printed Docket and 
at the place where said supreme court is to be held, of the order in which ^^^^ ^^^* 
the circuits are arranged ; and every case that is docketed, before all the 

cases from that circuit are heard, and shall be considered docketed in time ; 
and that errors may be assigned and issues joined, in said cases, at any 
time before said cases are called. 

Sec. III. [Repeals conflicting laws.] 

An Act to simplify the method of carrying cases to the Supreme Court ; 
and for other purposes. — Approved March 6, 1856. 

40. Sec. I. The General- Assembly of the State of Georgia^ do enact How cases 
as follows — When any party is dissatisfied with any decision made by any may be car- 
of the judges of the superior courts of this State, such party may carry i"i^d up. 
the case in which said decision is made to the supreme court, under the 
following rules and regulations : 

41. Sec. II. The party complaining of such decision, shall make out Bill of ex- 

a bill of exceptions and present [^Y] to the judge making the decision, ceptions made 

within thirty days after the adjournment of the court at which said ^^*' P''?^^°^^^ 

decision was made ; and if such decision was made at chambers, within ^*^ ^^^^^ 

thirty days after such decision was made ; and it shall be the duty of the 

judge to certify and sign, or refuse to sign, said bill of exceptions within 

two days after the same shall be presented to him, or shall come to his 

hand. 

42. Sec. III. The certificate and order of the judge, which shall be Form of 
signed by him, shall be substantially as follows : " I do certify that certificate of 
the following bill of exceptions is true, and contains all the evidence J"dge. 
material to a clear understanding of the errors complained of. And the 

clerk of the superior court of the county of is hereby required and 

ordered to make out a complete copy of the record of said case, and 
to certify the same to be a true and complete copy, and cause the same to 

be transmitted to the term of the district of the supreme court, 

that the errors alleged to have been committed may be considered and y^^\^ Qf e,.. 
corrected." And which shall be the writ of error in said case. ror. 

43. Sec. IV. It shall be the duty of the party obtaining said bill of C^Py ®^ *^^ 
exceptions, within ten days after the same is signed by the judge, to serve ]?^'^ ^^ ^^^?£" 
the opposite party, or his attorn ey-at-I aw, with a copy of such bill of excep- served?on the 
tions, or obtain an acknowledgment of service from the party or his attorney- adverse party, 
at-law ; and within two days thereafter to file said bill of exceptions 

in the clerk's oflcice of the court where the case was tried, or depending, 
in which the errors complained of were committed. 

44. Sec. V. It shall be the duty of said clerk, within ten days after said Clerk Superi 
bill of exceptions shall have been filed in his ofiSce, to make out a copy of®^' Courtmust 
said bill of exceptions; and also, a complete transcript and copy of the '^^ gjf^j^^lP^P^ 
record in said case, and to certify the same to be a true and complete copy, ceptions and 
and to cause the same, together with the original bill of exceptions, to transcript, 
be enveloped and transmitted to the next term of the supreme court of and transmit 
the district in which such county is situated, directed to the clerk of said^ ^^^^^^^ 
court : Provided^ said court does not sit in a shorter time than fifteen days Court. 



22 JUDICIARY.— SUPKEME COURT. 

from the time said bill of exceptions is filed in the clerk's office, as afore- 
said ; and if within a shorter period, then to the next term of said court 
held thereafter. And the clerk of said superior court shall retain said copy 
of the bill of exceptions in his office. 
Other Writs 45. Sec. YI. ISTo other writ of error, citation, or notice shall be re- 
unnecessary, quired, except as herein-before provided ; nor shall any exception be taken 
or allowed, as to the manner in which any case has been taken to said 
supreme court : Provided^ the previous provisions of this act have been 
substantially complied with. 
When Judge 46. Sec. VII. If it shall so happen that the judge of the superior 
is absent at court should not be at home, at the time Avhen application is made for 
the time pro- gignii;,g ^ bill of exceptions, or when such bill of exceptions arrives at 
^resenta*tion^ *^® post-office where he usually receives his letters, it shall be lawful for 
of Bills of Ex- said judge to sign said bill of exceptions on his return home, although the . 
ceptioa, what time within which said bill of exceptions is to be signed, by the provi- 
may be done, gjons of this act, may have expired \_and see 54] : Provided, said applica- 
tion for signing said bill of exceptions was made before the expiration of 
the time aforesaid, or that said bill of exceptions was deposited in the 
post-office in time to have reached said judge before the expiration of the 
time within which bills of exception are to be signed by the provisions of 
this act. The judge shall state in his certificate the fact of his absence. 
What unnec- 47. Sec. VIII. It shall not be necessary to embody in the bill of ex- 
essary in Bills ceptions any paper, or the copy o'f any paper, that is contained in the 
of Exception, transcript of the record ; nor to state therein any fact that appears by 
said transcript; nor to embody therein any documentary, or other evi- 
dence, that is not connected with, or material for a correct and clear un- 
derstanding of some one of the errors complained of in the bill of excep- 
tions. 
No assign- 48. Sec. IX. It shall not be necessary to make any assignment of 
ment of Error errors, as heretofore practiced in said court, but the case shall be heard 
necessary, ^p^jj ^he errors as set forth in the bill of exceptions, which shall be plainly 
and distinctly therein set forth. 

Aisr Act to provide a remedy for cases in the Supreme Court, where the 
Defendant in Error dies between the time of the trial in the Circuit 
Court, and the time of filing the Bill of Exceptions, Writ of Error, 
Citation and Xotice, in said Court. — Approved March 5, 1856. 
Whereas^ no remedy has by law been provided for the service of copies 
of the Writ of Error, Citation and Notice, in cases where the Defendant 
in Error has departed this life after the trial of the cause in the Circuit 
Court, and before the time of filing of the Bill of Exceptions, Writ of 
Error, Citation and Kotice in the said Circuit Court; for remedy whereof — 
Death of De- 49. Sec. I. Be it enacted^ That in all cases that now are, or hereafter 
^^"^.^^^^ P'^^' may be, pending in the supreme court of this State, where the defendant in 
error has departed this life between the time of the trial of the cause in 
the circuit court, and the time of the filing of the bill of exceptions, writ 
of error, citation and notice, of signing and certifying of the bill of ex- 
ceptions, in the circuit court in which such cause has been or may be tried, 
service of copies of such writ of error, citation and notice upon the 
attorney or attorneys engaged in behalf of such defendant in error in the 
trial of such cause in the circuit court, shall be held and deemed sufficient 
service to authorize the clerk of said circuit court to certify and send up 
to the supreme court a transcript of the record of such cause, together 
with the bill of exceptions, writ of error, citation and notice, as in other 
cases. 



JUDICIARY.— SUPREME COURT. 23 

50. Sec. II. That in all cases contemplated by the first section of this Parties how 
act, and the death of such defendant in error has been or shall be sug- made, 
gested in said supreme court ; and when it shall be made to appear to said 
supreme court, that legal representatives of such defendant in error, 

have been appointed and qualified to take charge of the estate of such de- 
ceased defendant, then and in that case, it shall be the duty of said court 
to cause seire facias to be issued to such legal representatives to make 
them parties to said cause in said supreme court, as in other cases : 
Provided nevertheless^ that such legal representatives may come in, and on 
motion in said supreme court, cause themselves to be made parties defend- 
ant in error in such cause, as in other cases. 

A^iT Act to prescribe the mode of taxing Costs in the Supreme Court of this 
State. — Approved March 6, 1856. 

51. Sec. I. Be it enacted^ That from and after the passage of this act. How Costs 
when judgment shall be pronounced in any cause, in the supreme court ofaretobetaxed 
this State, the costs of such case in &aid court, shall be taxed by the clerk ^° the Su- 
thereof, item by item, which" taxing of costs shall be entered on the minutes 1^^^^^ ^^^ - 
of said court, at the foot of said judgment ; and shall be, in all cases, trans- 
mitted in the remittitur to the court where the cause originated ; for 

which service no extra costs shall be charged by said clerk. 
Sec. II. [Repeals conflicting laws.] 

Aisr Act to pay the Clerk the Cost due him in criminal Pauper cases, re- 
turned to the Supreme Court of this State, and to explain the 17th sec- 
tion of an Act, approved 10th December, 1845, organizing the Supreme 
Court of the State of Georgia. — Approved Dec. 15, 1857. 
Whereas.^ by the 17th section of an act, approved 10th December, 1845, 
organizing the Supreme Court of the State of Georgia, it was not intended 
thereby to deprive the Clerk of said Court, of his costs, in criminal Pau- 
per cases, returned to said Court : therefore — 

52. Sec. I. JSe it enacted^ That his excellency, the governor, be and Clerk's fees 
he is hereby authorized to draw his warrant, upon any money in the treas- i'^ criminal 
ury, not otherwise appropriated, in favor of the clerk of the supreme ^J*^^ cases, 
court, for all legal cost due him, in each and all criminal pauper cases, re- 
turned to said court. It shall be the duty of said clerk, to submit to his 
excellency, the governor, a fair statement of each case, showiug the nature 

of the crime charged, and the county from whence it came ; returned 
under the seal of said court, before receiving compensation. 

An Act to make uniform the Decisions of the Supreme Court of this State ; 
to regulate the reversals of the same, and for other purposes. — Approv- 
ed Dec. 9, 1858. 

53. Sec. I. That from and after the passage of this act, the decisions Certain De- 
of the supreme court of this State, which may have been heretofore, or ^'sio^^s not to 
which may hereafter be made by a full court, and in which all three of the ^^Tno-ed ^^ 
judges have or may concur, shall not be reversed, overruled or changed ; 

but the same is hereby declared to be, and shall be considered, regarded and 
observed, by all the courts of this State, (when they have not been changed 
by legislative enactment,) as fully, and to have the same efiect, as if the 
same had been enacted, in terms, by the General Assembly. 
Sec. II. [Repeals conflicting laAvs.] 

An Act to amend the acts in relation to taking cases to the Supreme Court.. 
— Approved Dec. 11, 1858, 



24 JUDICIARY.— SUPKEME COURT. 

Judge unable ^4. Sec. I. That if, in any case which has arisen, or may hereafter 
to sign Bill of arise, the judge before whom said case was tried, shall by reason of absence 
Exceptions, from the State, death, sickness or other providential cause, be prevented 
what may be^j.^^^^ signing and certifying a bill of exceptions, the affidavit of the 
attorney for the plaintiff in error, (and other credible persons,) within 
three months from the trial of such case, to the truth of the bill of excep- 
tions, or the agreement of the parties, or their counsel thereto, shall be a 
sufficient authentication of such bill of exceptions. And it shall be the duty 
Any Judge of ^ny judge of the superior court, on being presented with such bill of 
derlo Th ^^" ^"^^^P*^^^^^' ^^ authenticated, to issue the order to the clerk of the superior 
Clerk etc. court where such case was tried, to send the case to the supreme court 
which shall next succeed the issuing of such order, which shall sit for the 
hearing of causes for the district to which said superior court belongs ; and 
such order, of such judge, shall be the writ of error, in such case. 
Sec. II. [Repeals conflicting laws.] 

An Act to repeal a part of the fifth section of the act approved December 
10th, 1845, entitled "An act to carry into effect that part of the first sec- 
tion of the third article of the Constitution which requires the establish- 
ment of a Supreme Court, for the correction of Errors, and to. organize 
the same, and to regulate the proceedings thereof." — Approved Dec. 11, 
1858. 
Part of the 55. Sec. I. That so much of said recited section as requires the 
actof 1845, re- (decisions of the supreme court to be delivered, or written out, by the 
pea ed. ju(jges of said court, seriatim ; except in cases where they are unanimous, 
be and the same is hereby repealed. 
Sec. II. [Repeals conflicting laws.] 

Bill of Exceptions, 

STATE OF GEORGIA, \ Be it remembered, that during the regular 

Houston County. ' J April Term of the Superior Court of said County, 
held in the year 1859, the case of John Doe against Richard Roe^ (be- 
ing an action of Assumpsit^ came on to be tried, before the honorable 
Peter E. Love^ one of the Judges of the Superior Courts of this State, 
presiding in said Court, and a special Jury, empannelled to try said 
cause. 

The PZai^^zjf tendered in" evidence, the deposition of Charles Smithy 
taken by Commission on Interrogatories. The Defendant objected to 
said Testimony, on the ground that the Witness only states his opinion 
and belief. The Court overruled said objection and allowed the same 
to be read in evidence, to the Jury. Which Testimony is as follows : 
— [Here copy the Answers, or so mueh as is material to show the objection.^ 

To which ruling and decision of the Court, in admitting said Testi- 
mony, and in overruling Defendant's objection thereto, Defendant 
excepts. 

The Plaintiff having closed his evidence, the Defendant offered in 
evidence, the original Receipt, of which the following is a copy: — 
[Here copy the paper offered.] The Plaint ff objected to said paper be- 
ing read in evidence, on the ground, [state the ground of objection.'] 
The Court sustained the objection and rejected the evidence ; to which 
ruling and decision, the Defendant excepts. 



JUDICIARY.— SUPREME COURT. 25 

The Defendant having offered no other evidence, the case was sub- 
mitted to the Jury. 

The Plaintiff requested the Judge to charge the Jury, as follows : — 
[Here copy the request ;] which request the Court gave in charge ; to 
which charge Defendant excepts. 

The Defendant requested the Judge to charge the Jury as follows : 
— [Here copy Defendant's request.'] The Judge refused to give said re- 
quest in charge, to which refusal Defendant excepts. 

The Jury retired and returned with a verdict in favor of the Plain- 
tiff. And now, within thirty days from the close of said Term of the 
Court, aforesaid, the Defendant tenders this his Bill of Exceptions, 
and prays that the same may be certified, according to the statute. 
This May 1, 1859. 

Thomas P. Stubbs, Atiy for Defendant, 

Judge's Certificate of Bill of Exceptions. 

I do certify that the following Bill of Exceptions is true, and con- 
tains all the evidence material to a clear understanding of the Errors 
complained of And the Clerk of the Superior Court of the County 
of Houston^ is hereby required and ordered, to make out a complete 
copy of the Record of said case, and certify the same to be a true and 
complete copy. And cause the same to be transmitted to the Macon 
Term of the Second District of the Supreme Court, that the Errors al- 
leged to have been committed, may be considered and corrected. 

Given under my hand and official signature^ this May 2, 1859. 

Peter E. Love, J. S. C. 

Achnowledgment of Service of Copy of Bill of Exceptions. 

We acknowledge due and legal service of a copy of the within Bill 
of Exceptions, and waive further service. This May 9, 1859. • 

Pringle & King, PVfs Atfys. 

ClerUs Entry of time of filing in Office. 

STATE OF GEORGIA, ) Clerk's Office, Superior Court 

Houston County. j Filed in Ofacc, this May 11, 1859. 

WiiLLiAM H. Miller, Clerk. 

Bond in a Civil Case. 

STATE OF GEORGIA, ) Whereas, a Bill of Exceptions has been ten- 
Eouston County. \ dcrcd on behalf of the Defendant, John Doe, to 
the decisions and judgment of the Court, in the case of Richard Roe 
against John Doe, pending in the Superior Court of said County, and 
all costs having been paid ; now therefore, we, John Doe principal, and 
Charles Smith security, both of said State and County, do acknowledge 
ourselve's held and bound unto the said Richard Roe, his heirs and as- 
signs, for the true payment of the eventual condemnation money, in 
said cause, and all future costs that may accrue in the same. 
Given under our hands and seals, this May 1, 1859. 

Approved, John Doe, principal, \h. S.] 

William H. Miller^ C. S. C. Charles Smith, security, [L. S.] 



26 JUDICIARY.— SUPREME COURT. 

Bond in Criminal Case. 

STATE OF GEORGIA ) Indictment for Misdemeanor, in Houston Supe- 
vs. \ rior Court. 

RICHARD ROE. ^ rp^^ Defendant, John Doe, having tendered a 
Bill of Exceptions to the decisions of the Court, on the trial of the 
above stated case, brings now, Charles Sinith his security. And the 
said John Doe and Charles Smith do hereby acknowledge themselves 
held and bound unto his Excellency Joseph E. Brown, Governor of 
said State, and his successors in office, in the sum of two thousand dol- 
lars ; subject to the following condition — ■ 

The condition of the above obligation is as follows — if the said 
John Doe shall be, in person, to abide the final order, judgment or 
sentence of said Court, in said cause, then this obligation to be void ; 
otherwise, of force. This May 1, 1859. 

Approved, John Doe, prinH, [L. S.] 

William H. Miller^ Clerh, Charles Smith, secHy, [L. S.] 

Affidavit of Inahility to pay Costs. 

STATE OF GEORGIA, > Personally appeared before the undersigned. 
Houston County. ^ John Doe, the defendant in a cause, {Richard 
Roe against John Doe,) pending in the Superior Court of said County, 
who being sworn, saith that his Counsel has advised him that he has 
good cause for a "Writ of Error; and that from his poverty, he is un- 
able to give the security for the eventual condemnation money and 
costs. 

Sworn to and subscribed, ) 
before me, this May 1, 1859. V JOHN" DOE. 

James Mack, J. P. ) 

Ckrk^s Certificate to Transcript of Record. 

GlerVs Office, Superior Court, May 20, 1859. 
STATE OF GEORGIA, ) I hereby certify that the foregoing is a fall and 
Houston County. j complete Transcript of the Kecords and Proceed- 
ings in the Superior Court of said County, in an action of Assumpsit, 
in which John Doe is Plaintiff and Richard Roe is Defendant. 
Oiven under my official Signature and Seal of Office. 
[L. S.] William H. Miller, C. S. C. 

Supersedeas. 

STATE OF GEORGIA 1 Indictment for Murder and Yerdict of Guilty, 
[in Houston Superior Court. 

j To the Clerh of the Superior Court and the Sheriff 
RICHARD ROE. J of^h^ County of Houston. 

The Defendant having tendered a Bill of Exceptions, in the above 
cause which has been allowed and signed ; therefore, we command, 
that you wholly cease from any further proceeding whatsoever, in re- 
lation to said cause, until further order in the premises. 

Given under my hand and Official Signature, this May 1, 1859. 

Peter E. Love, J. S. C. 



JUDICIAEY.— SUPREME COURT. 27 

Remittitur, 

STATE OF GEOEGIA.— ifaco92, U District 

Monday, February 21, 1859. 
The honorable, the Supreme Court, met pursuant to adjournment — 
Present their honors Jose'ph H. Lumphin^ Henry L. Benning and 
Charles J. M^ Donald. 

EICHARD ROE, Plaintiff in Error, ] 

vs. \ Bill, etc. 

JOHN DOE, Defendant. ) 

This case came before the Court "upon a transcript of the record 
from the Superior Court of Houston County, and after argument had, 
it is considered and adjudged by the Court, that the judgment of the 
Court below be affirmed. 

Bill of Cost. 

Case carried to judgment, $3 75 ; recording proceedings, $28 25, 
aggregate $32 00. Eecording opinion, $3 50 ; Eemittitur, $1 25 ; 
Sheriff, $1 25 ; aggregate, $6 00. 

Whole amount of Cost, . . . . $32 00 

■ In the above case, his honor Judge Lumpldn^ has entered the usual 
certificate, to prevent the collection of damages. 

SUPREME COURT OF GEORGIA. 

Macon, January Term^ 1859. 
I certify that the above is a true Extract taken from the Minutes, 
and that the Plaintiff in Error paid the Bill of Costs. 
Given under my hand ayid seal of office. 
[L. S.] Robert E. Martin, OlerL 

Judgme7it of the Court below. 

RICHARD ROE, Plaintiff in Error, ) 

vs. y Bill, etc. 

JOHN DOE, Defendant. ) 

The above stated case having been carried to the Supreme Court 
at Macon, by Writ of Error, and the said Supreme Court, at the Janu- 
ary Term thereof, having affirmed the Decision of this Court, on the 
trial of this cause ; it is, on Motion of Council for Defendant in Error, 
ordered and decreed, that the said Judgment of Affirmance of said 
Supreme Court, be entered on the Minutes of this Court, as sucb. 
And it is further ordered, adjudged, and decreed, that^ the said De- 
fendant Joh7i Doe, do recover of and from the Plaintiff in Error, the 
sum of fifty dollars as his Costs, in and about the said cause in Equity^ 
(in the pleadings mentioned,) expended in the defence and prosecution 
of the same. And the Plaintiff in Error, in mercy, &c. 

Samuel T. Bailey, 

April Term, 1859. Defls Sol 



28 JUDIOIARy.— SUPERIOR AND INFERIOR COURTS. 

SUPERIOR AND INFERIOR COURTS. 

An Act to amend an act entitled " an act to revise and amend the Judi- 
ciary System of this State." — Approved Feb, 16, 1799. 
Courts to be 56. Sec. I. The superior courts shall be held in each county in the 
held twice in respective districts, twice in every year, by one or more of the judges of 
eac year. ^^ superior courts. 

Aisr Act to compel the Judges of the Superior Courts of each Circuit in 
the State, to hold Adjourn ed-Terms in every County within their 
Circuit, where the business requires, until the Docket is cleared ; and for 
other purposes. — Approved Dec. 11, 1858. 
Adjourned- 5*^. Sec. I. Be it enacted., That from and after the first day of January 
Terms must be next, it shall be the duty of every judge of the superior court, to hold an 
^^^^- adjourned-term in every county within their respective circuits, where the 
business requires, to clear the docket. 
Juries to be 58« Sec. II. That at the r.egular-term of the court, where an adjourned- 
drawn. term is required, juries shall be drawn for the adjourned-term, and at the 
adjourned-term, for the next regular-term ; and all laws militating against 
this act, be and the same are hereby repealed. 
Clerk, under 59^ g^c. IV. In case of unavoidable accidents, whereby the said supe- 
cumsrances^'to ^'^^^ court, in any county, shall not be held at the appointed time for holding 
adjourn the the same, it shall be the duty of the clerk of such court, to adjourn the same 
Court. from day to day, not exceeding two days; and if the said court should 
not sit within the two days, as aforesaid, such clerk shall then adjourn 
the same to the next term. [And see 75 and 76.] 
h Id + • ^* S9* Sec. II. The inferior courts shall be held twice in every year, in 
year. ^^^^ county, by the justices of the said inferior courts, or a majority of 
them. — [As to adjournment, see 74.] 

POWERS common to BOTH COUKTS. 

Jurisdiction 60. Sec. III. The said superior and inferior courts shall have power 
and Inf^^ and authority to hear and determine all causes, both civil and criminal. 
Courts.* ^^ which they shall severally have jurisdiction, according to the constitu- 
tion and laws of this State, by a jury of twelve men, to be taken from 
the county, in such manner as shall hereinafter be prescribed, according 
to the usages and customs of law. 
Courts of rec- 61. Sec. V. The said superior and inferior courts shall be courts of 
C U T I'^cord, and have power to administer oaths, and exercise all other neces- 
to meet buS- ^^^y Powers appertaining to their jurisdictions respectively, according to 
ness co'ntia- law. And where any of the said courts shall fail to meet, the proceedings 
ued, in such courts shall not thereby be discontinued, but shall stand continued 
Witnesses over in the same manner as if such failure had not been. And all wit- 
j.ggj. ' nesses going to, attending on, and returning from any of the said courts, 
shall be free from arrest on any civil process. 
Courts may q2. Sec. YI. The said courts shall have power on the trial of causes 
production ^of cognizable before them respectively, on ten days' notice, and proof there- 
Books and Pa- of being previously given to the opposite party, or his, her or their at- 
pers. torney, [see 63,] on motion to require either party to produce books and 
other writings, in his, her or their possession, power or custody, which 
shall contain evidence pertinent to the cause in question, under circum- 
stances where such party might be compelled to produce the same, by the 
Pl'ff failing ordinary rules of proceeding in equity. And if the plaintiff shall feil or re- 
aon-suit. ' fuse to comply with such order, it shall be lawful for the court, on motion, 
to give judgment against such plaintiff, as in case of non-suit. And if the 



JUDICIARY.— SUPERIOR AND INFERIOR COURTS. 29 

defendant shall fail or refuse to comply therewith, the court, on motion, Deft failing, 
shall give judgment against such defendant, as in case of judgment byJu^g'tby De- 
default. And the said courts respectively, shall have power and author- fault, 
ity to establish copies of lost papers, deeds or other writings, under such ^Qg^ Papers 
rules and precautions as are or may have been customary and according may be estab- 
to law and equity. — [A7id see 65.] Hshed. 

An Act to alter and amend the sixth section of the Judiciary Act of this 
State, passed in the year seventeen hundred and ninety-nine, so far as 
relates to the Notices provided for in said section. And to prescribe 
the mode of issuing Scire Facias^ in certain cases therein provided 
for. — Approved Dec. 11, 1841. 

63. Sec. I. Be it enacted^ That from and after the passing of this act, Notices how 
that the time allowed for the service of notices requiring the production of ^^^ when 
books, papers or other writings, to be dsed as evidence upon the trial of served. 
any cause cognizable before the superior or inferior courts of this State, 

as provided for in the sixth section of the Judiciary act of seventeen 
hundred and ninety-nine, shall be as follows, to wit: — if the party notified 
reside in the county where said suit is pending, shall be ten days ; if 
out of said county and not more than one hundred miles distant, fifteen 
days ; if over one hundred miles and less than two hundred, twenty days ; 
if two hundred miles or more, or beyond the limits of this State, sixty days. 

64. Sec. II. In case of the service of any notice as aforesaid, where it Continuance 
shall be made clearly and satisfactorily to appear to the court before allowed, 
which the cause is pending, that the party notified has used due and proper 
diligence, but cannot respond to said notice, that it shall be continued at 

the instance of the parties notified. 

Notice to produce Boohs y etc, 
JOHN DOE ) . . 

vs. y Assumpsit in Houston Superior Court. 

RICHARD ROE. ) 

The Plaintiff \Q hereby notified and required, to produce, on the trial 
of the above-stated case, his original Books of Account; kept for the 
year eighteen hundred diudi fifty -eight ; containing the original entries 
of the Account of the Defendant ; the same forming the foundation of 
the Plaintiff's suit. And all other Books and Papers in his possession, 
which in any manner relate to the above suit. As said Books and 
Papers contain evidence pei^tinent to the case, and will be required on 
the trial thereof. This May 1, 1859. 

James A. Pringle, Deft^s Atfy, 

An Act to provide for establishing Lost or Destroyed Papers, and suing 
upon the same. — Approved March 5, 1856. 

65. Sec. I. Be it enacted^ c&c, That from and after the passage of this Mode of es- 
act, when any person shall seek to establish lost or destroyed papers under lablishlDg 
the 6th section of the Judiciary act of 1799, he or she shall present to the ^^^^ Papers, 
clerk of the superior or inferior court, a petition in writing, together with a 

copy in substance, of the papers lost or destroyed, as near as he or she can 
recollect, which copy shall be sworn fo ; whereupon, the clerk shall issue a 
rule nisi, in the name of the judge of the superior court, if the application 
be made to the superior court, and in the names of the justices of the 
inferior court, if the application be made to the inferior court, calling upon ^ 

the opposite party to show cause, if any he or she have, why the copy 



30 JUDICIARY.— SUPERIOR AND INFERIOR COURTS. 

sworn to, should not be established in lieu of the original so lost or 
destroyed. 
Rule nisi. 66. Sec. II. That said rule nisi, shall be served personally on the 
Service of party, if to be found within the State, and if the party cannot be found 
®* within the limits of theState, then said rule 7iisi. shall be published in some 
public gazette in this State, for the space of three months, which publication 
shall be deemed and considered service. 
Rule Abso- 67. Sec. III. That the court to which said rule 7iisi. may be return- 
1"*^- able, shall grant a rule absolute, establishing the copy of the lost or 
destroyed paper sworn to, at the first term of said court, if it appear to 
the court that the rule ?^^s^^ has been served according to the provisions 
of the second section of this act, and no sufficient cause appearing to the 
court, why said rule absolute should not be granted. 
Continuance 68. Sec. IV. That no motion for a continuance shall be gi-anted on an 
when allowed, application for a rule absolute in conformity with this act, unless it appear 
reasonable and just to the court; nor shall a continuance be allowed but 
once to the same party, only on providential cause shown to the court. 
Clerk must 69. Sec. Y. That the clerk of the court in which a lost or destroyed 
furnish V'^^^J paper has been established, shall furnish the copy paper established in con- 
^^^ coDv^ ^ formity with this act, with a certified endorsement on the same, (of the 
day and date and term of the court at which it was established,) to the 
party who had the paper established : Provided^ all costs which may have 
accrued in establishing said paper, have been paid. 
Suit may be 70. Sec. VI. That if the paper lost or destroyed be a note, bill, bond 
commenced, ^j. Q^]^gj> evidence of debt, the jDcrson owing the same, may institute suit 
upon the same, so soon as a rule nisi, has issued in conformity with this 
act. 
Process what 71. Sec. VII. That whenever suit is constituted in conformity with 
it must the 6th section of this act, it shall be set forth in the original process, that 
contain, j^^ paper is lost or destroyed. And in no case shall there be a judgment 
when ^^^5 until it shall be determined by the court, whether the application to 
rendered, establish the lost or destroyed paper sued on, be granted or not ; and if 
granted, then judgment may be had, as in other cases. 
Oyer when it 72. Sec. VIII. That oyer shall not be demanded in any case where the 
may be petition sets forth that the instrument sued on is lost or destroyed. But 
requir . ^yg^. ^^^^ ]^g demanded at the time of the rendition of judgment ; and if 
the plaintiff produce a copy of the instrument sued on, in conformity with 
the 5th section of this act, it shall be taken and considered as the original. 
Costs by 73^ Sec. IX. That all costs which may accrue in establishing lost or 
whom paid, (destroyed papers, in conformity with this act, shall be paid by the party 
having the same established, unless it be otherwise directed by the court. 
Sec. X. [Repeals conflicting laws.] 



Petition to Establish Destroyed Note. 

STATE OF GEORGIA, \ To i\iQ Superior Court of said County. The 
Houston County. j Petition of John Doe showeth, that on the first 
day of January., eighteen hundred and fifty-nine^ Petitioner was pos- 
sessed, in his own right^ of a certain Promissory Note., made and exe- 
cuted by Richard Roe^ of said County (a copy of which, in substance, 
is hereunto annexed.) 

That on the said first day of January., eighteen hundred and fifty- 



JUDICIARY.— SUPERIOR AND INFERIOR COURTS. 31 

ninej said Note was entirely destroyed by fire^ the same being due and 
unpaid : wherefore, Petitioner prays that the annexed copy of said 
Note^ maybe established in lieu of the original. This Fehriiary 1, 1859. 

John M. Giles, Pet'T's Ati'y. 

Copij Note. 

One day after date, I promise to pay John Doe or bearer, one hun- 
dred dollars. Value received this December 25, 1858. 

ElCHARD EOE. 

Petitioner's Affidavit. 

STATE OF GEORGIA, ) Iq person appeared before the undersigned, 

Houston County. J John I)oe, who after being sworn says, that the 

facts stated in the foregoing Petition, relative to the annexed copy 

Note, are true. And that the copy Note is a true and exact copy of the 

original Note destroyed, as near as he can recollect. 

Sworn to and subscribed, before me, ) 

this February 1, 1859. I JOHN DOE. 

James Mack, J. P. ) 

Rule Nisi, hy the Clerh. 
Q^O^Qlk— HOUSTON COUNTY. 

^s \ Petition to Q^i2}A\Q\i destroyed Note. Clerk's Office of 

BICHARD ROE. j the Superior Court. John Doe having by his Petition, 
filed in this office, set forth that Richard Roe, of said County, made 
and executed a Promissory Note, of which the following is a copy : 
\]iere set out a copy of the Lost Paper, sought to he established, signed hy 
the Maher, etc.,'] and that said original has been destroyed hy fire ; and 
having prayed that said copy, which is sworn to, should be established 
in lieu of the original. It is, therefore, ordered that said Richard Roe 
show cause, (if any he have,) at the next Term of the Superior Court 
of said County, to be held on the fourth Monday in April, eighteen 
hundred and fifty -nine, why said copy should not be established in 
lieu of the original. 

Witness the honorahle Henry G. Laraar, Judge of said Court, this Feh- 

ruary 1, 1859. 

William H. Miller, Glerh 

Rule Absolute. 

JOHN DOE ^ Motion to establish destroyed Note. April Term, 1859. 
vs. V It appearing to the Court here, that the Eule Nisi. 

RICHARD ROE. ) granted by the Clerk of this Court, in vacation, upon 
the Petition of John Doe, (requiring the Defendant to show cause, if 
any he had, why the copy Note, in said Eule mentioned, should not be 
established in lieu of the original, declared to be destroyed,) has been 
duly served on the Defendant ; and no sufficient cause appearing to the 
Court, why said Eule should not be made Absolute ; it is, therefore, 
considered, ordered and adjudged, that said Eule Nisi, be made Abso- 
lute, and that the copy Note, to said Petition attached, be and the 
same is hereby established, in lieu of the original. 

John M. Giles, PVfs Att'y. 



32 JUDIOIAEY.— SUPERIOR AND INFERIOR COURTS. 

A^N" Act to authorize the adjournment of the Superior and Inferior Courts, 
and Courts of Ordinary, in certain cases, by the Officers therein named. 
A^^^proved Dec. 8, 1823. 

WViereas, it frequently liappens from unavoidable circumstances, that 
the Judge of the Superior Courts ; a majority of the Justices of the Infe- 
rior Courts, cannot attend at the regular term of said Courts, and that a 
term is thereby lost, to the great injury of those concerned, as well as a 
delay of justice — 
Regular Term 74. Sec. 1. De it therefore enacted., That from and after the passing 
of the Inferior Qf ^j^jg ^^^^ ^^^ \^ from any circumstance, a majority of the justices of the 
how Court^' irif'srior court, in any of the counties of this State, should fail to attend 
may be at the regular term of said inferior courts, or at any adjourned-term, it 
adjourned, shall and may be lawful for any one of the justices of the inferior court, in 
the county where such failure may take place, together with the sheriiF or 
his deputy, coroner or constable and the clerk of said court, to adjourn 
said court to such time as they in their judgment may think proper. 
Clerk Superi- 75. Sec. III. The clerks of the superior courts of this State, be au- 
or Court, to thorized, whenever they are informed by the presiding judge that it is not 
adjourn Court pQggji^lg for him to attend the regular term of said court, from sickness or 
Judo-e other causes, to adjourn the same to such time as he may direct ; and shall, 
moreover, advertise the same at the court-house of the county in which said 
court is to be held, and one or more times in some public gazette of the 
State. — ySee next Act.] 

Sec. IV. All laws and parts of laws militating against this act, are 
hereby repealed. 

An Act to alter and amend the third section of an act entitled " An Act 
to authorize the Adjournment of the Superior and Inferior Courts, 
and Courts of Ordinary, in certain cases, by the Officers therein named," 
passed December 8th, 1823. — Approved Dec. 25, 1837. 
Adjournment 76. Sec. I. Be it enacted., That from and after the passage of this act, 
for Providen- none of the superior courts of this State shall be adjourned imder the 
tiai causes, above-recited act, for any other cause than that of sickness of the pre- 
siding judge, or of his family, or other Providential cause, which shall be 
expressed in the order of adjournment. 
Sec. II. [Repealing section.] 

An" Act to authorize the Relator in any Writ of Mandamus, to traverse 
the Answer or return of any person. Officer, Corporation or Court of 
this State, to any Writ of Mandamus issued by the Superior Courts of 
this State. — Approved Ja7i. 7, 1852. 
Return must ^i'^- ^^c. I. Be it enacted., That from and after the passage of this act, 
be on Oath, whenever any person, officer, corporation or court, of this State, shall make 
any answer or return, under or by virtue of any Writ of Mandamus, issued 
by any of the superior courts of this State ; or any of the judges of said 
superior courts, the same shall be made on oath, to be taken at the time 
of making such answer or return. And the relator in said Writ of Manda- 
lYavSed ^ i''^^^^^, shall be at liberty to traverse the truth of such answer or return. 
Issue how And upon such traverse, an issue shall be formed and tried by a special 
tried and jury at the term of the superior court at which said answer or return shall 
when. be made ; and if made out of term-time, then to be tried at the term next 
after the making of said answer or return, as in case of other traverses. 
If found to be 78. Sec. II. That if the jury on the trial of the issue, as aforesaid, shall 
false, Manda-lind said answer or return to be flilse, it shall be the duty of said superior 
mus absolute court, to award a Mandamus Absolute, to issue against said person, officer, 
corporation or court, of this State. 



JUDICIAEY. -SUPERIOR AND INFERIOR COURTS. 33 

Sec. III. That all laws and parts of laws militating against this act, be 
and the same are hereby repealed. 

MANDAMUS. 
Petition for the Writ of Mandamus. 

STATE OF GEOEGIA, ) To the honorable Renry G. Lamar, Judge of 
Houston County. \ the Superior Courts of the Macon District. 
The Petition of Jb/in i)oe, of said County, showeth unto your honor, 
that he has now pending in the Inferior Court of said County, a cer- 
tain action of Assumpsit, against Richard Roe of said County, alleging 
that the said Richard Roe from your Petitioner unjustly detains the 
sum of five hundred dollars, besides interest; upon a certain Promissory 
Note, to the said Inferior Co\irt exhibited and shown, and which Prom- 
issory Note is now attached to the said Writ of Assumpsit in the 
Clerk's Office of the said Inferior Court. On which action of As- 
sumpsit before the said Irtferior Court, holden in and for said County, 
on the fourth Monday in July, eighteen hundred Siud fifty-seven, said 
Richard Roe filed the plea of the General Issue. And upon the trial 
of the said action of Assumpsit, on the fourth Monday in July last, it 
was found by the Verdict of twelve lawful Jurors, duly empannelled 
and sworn to try said cause, that the said Richard Roe did owe your 
Petitioner on said Promissory Note, the sum of five hundred dollars for 
his principal debt, and the sum of forty dollars for his interest, and the 
costs of suit. Which Verdict was by the said Jury duly returned to 
said Court, at the last term thereof aforesaid, aad now remains in the 
files of said Court. And your Petitioner, at the said last term of said 
Inferior Court, moved said Court, then and still consisting of Charles 
Anderson, John Ragin, John D. Winn, William F. Postell and William 
T. Swift, Justices of said Court, to order and permit said Verdict to be 
recorded; and said Court did nevertheless, omit, refuse and forbid, 
and still do omit and refuse to order and permit said Verdict to be re- 
corded, to the great damage and grievance of your Petitioner. All 
which facts aforesaid, do more fully and largely appear by the files and 
records of said Inferior Court, here presented to your honor. 

Wherefore, Petitioner moves your honor to issue the Writ of Man- 
damus, requiring and enjoining the aforesaid Justices, at the next 
ensuing term of said Inferior Court, to be holden in and for said County, 
on the fourth Monday in January next, to order said Verdict to be re- 
corded, and to proceed to final judgment therein, or signify cause to 
the contrary thereof, to this Court, at the next term thereof And, as 
in duty bound, your Petitioner will ever pray, etc. This August 1, 
1859. 

James A. Pbingle, Pef7''s Atfy. 

Order of the Judge. 

In Chambers, May 1, 1859. 

STATE OF GEORGIA, ) The within Petition having been read and 

Bibb County. j* considered, it is hereby ordered, that the Clerk 

of the Superior Court of the County of Houstonj do issue the writ of 

3 



34 JUDICIARY.— SUPERIOR AND INFERIOR COURTS. 

Mandamus, directed to the Justices of the Inferior Court of Houston 
County, according to the prayer of the Petitioner. And let such 
other proceedings as are usual, be had. 
Given under my hand and official signature^ 

Henry G-. Lamar, J. S. C. M. C. 

The Writ. 

STATE OF GEORGIA, i To the Sheriff of said County— Greeting : 

Houston County. j Whereas, John Doe, of said County, by his Peti- 
tion, shows that he has now depending before the Inferior Court of 
said County, {Charles Anderson, John D. Winn, John H. Ragin, 
William F. Postell and William T. Swift, being the Justices of said 
Inferior Court,) an action of Assumpsit against Richard Roe, of said 
County; alleging that the said i^^'cAarc/ Roe detains from Petitioner 
the sum of floe hundred dollars, besides interest; founded upon a 
Promissory Note, which Note is of file in said Court, in the Clerk's 
Office. To which action of Assumpsit, at the appearance term of 
said Court, the Defendant filed the Plea of General Issue. And at 
the trial term of said action of Assumpsit, the Jury impannelled and 
sworn to try said case, returned a Verdict into Court o^ five hundred 
dollars, principal debt, and the sum o^ forty dollars interest, and the 
costs of suit, in favor of the Plaintiff against the Defendant. And, 
whereas, it is further shown by the Petitioner, that he moved said 
Inferior Court to receive said Verdict and order it to be recorded, 
which motion said Inferior Court, (then and yet consisting of the 
Justices aforesaid,) rejected and refused, and said Verdict was not 
received and recorded. Now, therefore, in order that justice may be 
administered in the premises, you, the said Charles Anderson, John D. 
Winn, John H. Rigin, William F. Postell and William T. Swift, 
Justices of the Inferior Court o^ Houston County, are hereby directed 
to order the aforesaid Verdict, in said cause, at the term of said Inferior 
Court, following this date, to be recorded, and proceed to final judg- 
ment thereon ; or, at the next term of our Superior Court, under the 
seal of your said Court, you signify and show cause to the contrary. 
And your Answer and showing you do cause to be transmitted to our 
said next Superior Court, to be held in and for said County, on the 
fourth Monday in October next. 

Witness, the honorable Henry G. Lamar, Judge of said Court^ this 
August 5, 1859. 

William H. Miller, Cleric. 

Relum to the Writ of Mayidamus. 

GEORGIA, Houston County, ) 
Inferior Court, July Term, 1859. | 
To the Superior Court of the County oi Houston, to be held in Perry, 
on the fourth Monday in October next. 

The undersisfned, Justices of the Inferior Court, within and for the 
County of Houston, would respectfully represent that they have been 
duly served with a Writ of Mandamus, which issued in Chambers, 
from the honorable Henry G. Jjamar, Judge of the Superior Courts of 
the Macon District, on the fifteenth day of August^ eighteen hundred 



JUDICIARY.— DECLARATION, PLEA, ETC. 35 

and fifty-nine^ them commanding and requiring at the term of the 
Inferior Court, then next to be holden, (and which was held in said 
County of Houston^ on the fourth Monday in July^ eighteen hundred 
and fifty-nine^) to cause to be received and recorded a certain Yerdici^ 
in the Petition of Johii Doe, said to have been rendered in a certain 
action of Assumpsit^ in which said John Doe is Plaintiff, and Richard 
Roe is Defendant, pending in said Inferior Court, and to render final 
judgment thereon, or to show cause to the contrary thereof. Which 
Writ was and is, in the words and figures following, to wit: \here set 
out the Writ.'] And that thev did not, at the last term of said Inferior 
Court, cause said Verdict to be recorded in said cause, nor proceed to 
final judgment therein, — and for cause of such their omission to do 
the same, they assign and submit the following reasons, to wit: [here 
set out the reasons for not allowing the Verdict to he received and recorded^ 
eic.^ fully and at length.] 

Given under our hands and official signatures^ 

CHARLES ANDERSON, J. J. C. 



[Seal.] 



Attest- 



JOHN H. RAGIN, J. J. C. 
JOHN D. WINN, J. J. C. 
WILLIAM F. POSTELL, J. J. C. 
WILLIAM T. SWIFT, J. J. C. 

John H. King, Clerh. 



Verification of the Return. 

STATE OF GEORGIA, ) In person appeared before the undersigned, 
Houston County. j" Qhavles Anderson^ John H. Ragin, John D. Winn, 
William F. Postell and William T. Swifts Justices of the Inferior Court 
of the County aforesaid, and, being duly sworn, say, that the facts 
contained in the above Answer, so far as they relate to the act or deed 
of deponents, are true of their own knowledge; and, so far as they 
relate to the act or deed of any other person, they believe them to be 
true. 

CHARLES ANDERSON. 
Sworn to and subscribed, ) JOHN H. RAGIN. 

before me, this July 20, 1859. V JOHN D. WINN. 

James Mack, J. F. ) WILLIAM F. POSTELL. 

WILLIAM T. SWIFT. 

declaratio:n', plea, etc. 

79. Sec. VIII. All suits of a civil nature, cognizable in the said courts, Plaintiff's 
respectively, shall be by petition to court ; which petition shall contain petition, what 
the plaintiffs charge, allegation or demand, plainly, fully and distinctly it must con- 
set forth, and be signed by the plaintiff, or his, her or their attorney ; and *^^°' 
to which petition the clerk shall annex a process, signed by such clerk, Process, 
and bear test in the name of one of the judges or justices of such court ; 
directed to the sheriff, requiring the defendant or defendants to appear at How directed, 
the court to which the same shall be made returnable ; and shall be served 
on the defendant or defendants at least twenty [see 198 and 206] days When served, 
before the return thereof, by delivering a copy of such petition and pro- 
cess to the defendant or defendants, or leaving such copy at his, her or 
their most notorious place or places of residence. And if any such wheu can- 
process shall be delivered to the sheriff, or other officer, whose duty it shall not be served. 



S6 



JUDICIARY.— DECLARATION, PLEA, ETC. 



Void process. 



be to execute the same, so late that it cannot be served in manner afore- 
said, twenty days before the sitting of the court to which it shall be return-, 
able, such process shall not be executed, but the officer shall return the samcj 
with the truth of the case. And if any original civil process shall be takei] 
out within twenty days of the next court, the same shall be made returnable 
to the next court to be held after the expiration of the said twenty days< 
and not otherwise. And all process issued and returned in any othei' 
manner than that lierein-before directed, shall be and the same is hereby 
declared to be null and void. 



Interested 

sheriff, how 

served with 

process. 



Appearance. 
Answer. 



Cannot deny 

deed, &;c., but 

upon oath. 

Petition and 
answer suffi- 
cient. 



Matter of 
form amend- 
able. 



Dilatory- 
plea must be 
under oath. 

Judgment 
by default. 



But one 
continuance. 

Actions 
against par- 
ties residing 



Ax Act to alter and amend the 9th sec. of the Judiciary Act of 1799 J 
and the 1st sec. of an act relative to Executions, passed Dec. 14, I8II4 
— Approved^ Dec. 22, 1840. 

80. Sec. I. All original process hereafter, issued by the clerks of the 
superior and inferior courts, respectively, where the sheriff who ought to 
execute the same, shall be anywise interested, shall be directed to the coro-- 
ner of the county in which said sheriff may reside, and to the sheriffs of 
the adjoining counties ; and shall be served and returned by the said 
coroner, or the sheriff of any one of such adjoining counties, at the option 
of the plaintiff, within such time, and in such manner, as required by* 
law, in other cases. 

81. Sec. IX. And for the more orderly and regular proceeding in the 
said courts, the following rules and methods shall be observed, to wit : — 
The defendant or defendants shall appear at the court to which the 
petition and process shall be returnable, and on or before the last day 
of the said court, shall make his, her or their defense, or answ^er, in writing, 
which shall plainly, fully and distinctly, set forth the cause of his defense, 
and be signed by the party making the same, or his, her or their attorney. 
Which said answer may contain as many several matters, as such defend- 
ant or defendants may think necessary for his, her or their defense : 
Provided^ that no person shall be permitted to deny any deed, bond, 
bill, single or penal note, draft, receipt or order, unless he, she or they 
shall make affidavit of the truth of such answer, at the time of filing the 
same. And the said petition and answer shall be sufficient to carry the 
same to the jury, without any replication or other course of proceedings^ 
And no petition, answer, return, process, judgment, or other proceeding 
in any civil cause, shall be abated, arrested, quashed or reversed, for any 
defect in matter of form, or for any clerical mistake or omission, [not 
affecting the real merits of the cause;] but the court, on motion, shall 
cause the same to be amended without any additional cost, at the first 
term; and shall proceed to give judgment according to the right of the 
cause, and matter of law ; as it shall appear to the said court, without 
regard to such imperfections in matter of form, clerical mistake or omis- 
sion. And no dilatory answer shall be received or admitted, unless 
affidavit be made of the truth thereof 

82. Sec. X. Where any defendant shall fail to appear and answer in 
manner aforesaid, the court, on motion of the plaintiff or his counsel, shall 
enter a judgment by default; and the plaintiffs' claim, allegation or de- 
mand, shall be tried, in all cases of judgment by default, by a jury; but 
no such trial shall in any case, be had at the first term. \^Biit see Jie?it.'\ 
And no cause whatsoever, depending in said courts, shall be continued 
more than one term, at the instance of the same party. [See continuance.^ 

83. Sec. XI. In all cases where a suit shall be instituted in any of the 
said courts, on any bond, note or other written obligation, subscribed by 
several persons^ who reside in different counties, the plaintiff shall have hh 



JUDICIARY.— DECLARATION, PLEA, ETC. 37 

option to institute his suit in either of the said counties, and tlie clerk in different 

shall issue the original petition and process, and a copy or copies in such counties. 

county, against the defendant or defendants who may reside therein, in 

manner directed by this act; and shall also issue another original and 

copy or co^^ies thereof, for the defendant or defendants resident in other 

county or counties. And it shall be the duty of the plaintiff, his agent or 

attorney, to cause such original and copies to be delivered to the sheriff*, 

or other officer, in such other county or counties, Avho shall execute and 

return the same to the court from whence they issued, in such manner as 

is herein-before directed, and on such return, the plaintiff" may proceed as 

in other cases. 

Aif Act to explain and enforce the Judiciary act of 1799, as respects 
Special Pleadings in the several courts of law in this State. — Approved 
Dec. 19, 1818. 

'Whereas^ the said Judiciary was intended for the purpose of bringing 
parties litigant, to a speedy judicial decision, without delay and with as 
little costs as practicable. And it Avas thereby intended, that the small 
omissions of parties, clerks or sheriff's, not affecting the real merits of the 
cause, should in all cases substantially set out, be amended on motion with- 
out delay or costs. And it having grown into practice in said courts, to 
give or grant a term, and sometimes non-suit, for the smallest omissions of 
the officers of the said courts; and as a further increase of the said prac- 
tice may lead us back to all that tedious and expensive labyrinth of sj)ecial 
pleadings which the said judiciary intended to avoid — 

84. Sec. I. JBe it enacted^ c&c.^ That in every case where there is a Formal de- 
good and legal cause of action, plainly and distinctly set forth in thefects amenda- 
petition, and there is, in substance, a copy served on the defendant or de- ^^^Qinstanter. 
fendants, or left at their most notorious place of abode, every other objec- 
tion shall be, on motion, amended without delay or additional costs. 

[See. 88 and 112.] 

85. Sec. II. No special pleadings shall be introduced or admitted in ^ . -. ^|g„^. 
either the superior or inferior courts of this State, (other than in equity;) \^cr not allow- 
which shall be conducted in the same manner as is already pointed out by ed at law. 
the judiciary system of this State now in force. And that every case 

shall be carried to the jury and tried, upon the petition, process and 

answer alone, without regard to the practice, now grown into use in the 

several courts of law in this State. And no non-suit shall be awarded No non-suit 

when the cause of action is substantially set forth in the declaration, for for want of 

any formal variance between the allegation and proof. form, 

86. Sec. III. No part of an answer shall be stricken out, or rejected, No part of 
on account of being contradictory to another part of the same answer ; Answer to be 
but the court shall be bound to suffer the whole answer to remain, if stricken out. 
the defendant should desire it, and avail himself of any advantage he can 

or may have under either, or the whole, of the said answer, and proceed 
to trial accordingly. 

Declaration. 

STATE OF GEORGIA, ) ^ , ^ ^ ^ • , ^ 

Houston County. [ ^o the SaperioT Court of said County. 

The Petition of JoJni Doe^ showeth that Richard Roe, of said Coun- 
ty, is indebted to your Petitioner, the sum o^ Jive hundred dollars^ be- 
sides interest : for that whereas, the said Richard Roe, on the first day 
of May^ in the year of our Lord eighteen hundred SLud fifty-eight, made 



38 JUDICIARY.— DECLARATION, PLEA, ETC. 

his certain Promissory Note, and then delivered said Promissory Note 
to one Charles Smithy (which is here in Court to be shown ;) whereby, 
ten days after date of said Note, the said Richard Roe promised to pay 
said Charles Smith, or bearer, the sum o^ jive hundred dollars, for 
value received. And the said Charles Sviiih, to whom said Notdi 
was rr.ade payable, afterwards, to wit, on the day and the year firs^ 
aforesaid, duly endorsed and delivered said Note to your Petitioner, in ^ 
fair course of trade and for a valuable consideration. By reason 
whereof, the said Richard Roe became liable to pay your petitioner the 
aforesaid sum of money, according to the tenor and effect of said Note. 
And being so liable, in consideration thereof, afterwards, to wit, on 
the daj^ and year first aforesaid, said Richard Roe undertook to pay your 
Petitioner the same, according to the tenor and effect of said Note. A'^et 
the said Richard Roe although so indebted, and to pay the said sum of 
money often requested, has not paid the same, but the same to pay 
has heretofore wholly refused, and still does refuse, to the damage of 
your Petitioner one thousand dollars. Wherefore, your Petitioner brings 
suit and prays Process may issue, requiring the said Richard Roe, per- 
sonally or by attorney, to be and appear at the next Superior Court to 
be held in and for said County, to Answer your Petitioner in an action 
of Assumpsit, etc. 

James A. Pbingle, Pl'ff^s Atfy. 

Form of a Declaration of second or subsequent Endorser, 
against Maker and first Endorser.^ on a Note not Bankable. 

For that whereas, the said C D, heretofore, to wit, on the first day 
of May, in the year 1859, made his certain Promissory Note in writ- 
ing, bearing date the day and year aforesaid, and thereby, then and 
there, promised to pay two months after the date thereof, to one E. F, 
or order, the sum oi fifty dollars, for value received; and then and 
there, delivered the said Promissory Note, to the said E. F. And the 
said E. F. to whom or to whose order, the payment of the said suna 
of money, in the said Note specified, was to be made, after the making 
of the said Note, and before the payment of the said sum of money 
therein specified, to wit, on the day and year aforesaid, endorsed th(| 
said Note, by which said endorsement, he the said E. F, then and 
there ordered and appointed the said sum of money in the said Not0 
specified, to be paid to your Petitioner; and then and there delivered 
the said Note to your Petitioner, for a valuable consideration. By 
means whereof and by force of the statute, in such case made and 
provided, the said C. I), and the said E. F, Defendants, as aforesaid, 
then and there became liable to pay to your Petitioner, the said sum 
of money in the said Note specified, according to the tenor and effect 
of the said Note. And being so liable, they the said Defendants, in 
consideration thereof, afterwards, to wit, on the day and year aforesaid, 
■undertook, and then and there, faithfully promised to pay to your 
Petitioner, the said sum of money, in the said Note specified, accord- 
ing to the tenor and effect thereof Yet your Petitioner avers, etc. 
etc. 




JUDICIAEY.— DECLAEATION, PLEi^, ETC. 39 

Endorsement by the Clerk. 

Filed in Office, this March 5, 1859. 

William H. Miller, Cleric. 

Process annexed by the Clerk. 

STATE OF GEORGIA. )^,,.^^.,^ ^ 

Houston County. \ ^^ ^^^ ^//en/ of said County —Greeting, 

JOHN DOE \ 

vs. y Assumpsit in the Superior Court of said County. 

EICHAEDROE. j 

The Defendant is hereby notified and required, personally or by 
attorney, to be and appear at the next /Superior Court, to be held in 
and for said County, on the fourth Monday in April next: then and 
there to Answer the Plaintiff's demand in an action of Assumpsit^ as 
in default thereof, the Court will proceed as to justice shall apper- 
tain. 

Witness, the honorable Henry G. Lamar, one of the Judges of the Supe- 
rior Courts of said State, this March 5, 1859. 

William H. Miller, Clerk 

Return of the Sheriff. 

I have executed the within Writ by serving a copy thereof on the 
Defendant persowa%, this March 5, 1859. 

Madison Marshall, Sheriff. 

ANSWEK OF THE DEFENDANT. 

Plea of Non Est Factum. 

JOHN DOE \ GEORGIA— ^0 USTON COUNTY. 

^*- > Assumpsit in the Superior Court of said County, April 

RICHARD ROE. \ Term, 1859. 

And the said Defendant, by his attorney Thomas Felder, comes and de- 
fends the wrong and injured, when, etc. and says, that he did not him- 
self make the said Note, in the Plaintiff's Declaration described; nor 
did he authorize, instruct or direct any other person to make said 
Note for him. And of this he puts himself upon the country. 

Thomas Felder, Defh At(y. 
In person appeared before the undersigned, Richard Roe, Defendant 
in the above-stated suit, who being duly sworn, saith, that the facts 
contained in the foregoing PJea, are just and true as therein stated. 

Sworn to and subgcribed, 
beefore me, this April 25, 1859. \ RICHARD ROE. 

James Mack, J. P. 



'l 



Plea to the Jurisdiction. 
JOHN DOE \ GEORGIA— JTO USTON COUNTY. 

vs. I Assumpsit in the Superior Court of said County, April 

RICHARD ROE. ) Term, 1859. 
And the said Defendant, in his own proper person, comes and says 



40 JUDICIAEY.— DECLARATION, PLEA, ETC. 

that this Court ought not to have or take further cognizance of the 
suit above stated, because he sa}' s, that at the time of the commence- 
ment of said suit, to wit, the fifth day of Mardt, eighteen hundred and 
fifty-nine^ the Defendant resided in the County of Bihh^ in said State, 
and not in the County of Houston ; or elsewhere, out of said County 
of Bihh ; and this he prays may be inquired of by the Court. 

ElCHARD EOE. 

Richard Roe^ the Defendant in the above-stated case, in person ap- 
pears before the undersigned, and makes oath and says, that the above 
Plea is true in substance and fact. 

Sworn to and subscribed, ] 
before me, this April 25, 1859. |- RICHAED EOE. 

James Mack, J. P. } 



Plea of Misnomer. 

JOHN DOE \ GEORGIA— ^0 USTOJSr COUNTY. 

vs. I Assumpsit in the Superior Court of said County. 

EICHAED EOE. ^ April Term, 1859. 

And William Roe, against whom the Plaintiff hath exhibited his 
Writ by the name of Richard Roe, in his own proper person comes 
and says, that he is named and called by the name of William Roe; 
and by that name and surname hath always, since the time of his 
nativity, hitherto been named and called; without this, that he the 
said William Roe, now is, or at the time of exhibiting the said Writ, 
was or ever before had been named, or called by the name of Richard, 
as by the said Writ is supposed ; and this, he the said William Roe 
is ready to verify and prove. Wherefore he prays judgment of the 
said Writ, and that the same may be quashed, etc. 

William Eoe. 

In person appeared before the undersigned, William Roe, and after 
being sworn saitb, that the facts stated in the above Plea, are just and 
true. 

Sworn to and subscribed, ^ WiLLIAM ROE. 

before me, this April 25, 1859. > * 

James Hack, J. P. S 

AisT Act to authorize amendments to be made instanter, in cases of Mis- 
nomer, in all Judicial Proceedings. And for other purposes. — Ap- 
proved, Mb. 22, 1850. 
Misnomer 8T. Sec. I. Re it enacted, That from and after the passage of this act, 
amend-ed in- all misnomers made in writs, petitions, bills or other judicial proceedings, 
stanter. q^ iy^q (>[^[[ gj^jg Qf ^]^q court, shall be amended and corrected instanter, 
without working any unnecessary delay to the party having made the 
same. 
Omission of a 88. Sec II. In suits by or against partners, or when any two or more 
party amend- persons sue or are sued in the same action, and the name of any person 
ed instanter. ^-j^^ ought to be joined in such action as plaintiff or defendant, is omitted, 
on ascertaining the same, the omission shall be amended instanter. 



JUDICIARY.— DECLARA.TION, PLEA, ETC. 



41 



Plea of Infancy. 

JOHN DOE \ GEORGIA— //OCTAS'J'OiV COUNTY. 

"^s. V Assumpsit in the Superior Court of said County. 

RICHARD ROE. ) j^^^u Term, 1859. 

And the said Richard Roe^ by Thomas Felder^ his attorney, [or if the 
Defendant be still an Infant, say "by James A. Pringle^ admitted by 
the Court, as Guardian of said Richard Roe^ to defend for the said 
Richard Roe who is an Infant under the age of twenty-one years,"] 
comes and defends the wrong and injury, when, etc. and says, that the 
said John Doe ought not to have or maintain his aforesaid action against 
him, because he says, that the said Richard Roe at the time of making 
the several supposed promises and undertakings in the said w^rit men- 
tioned, was an infant within the age of twenty-one years, to wit, of 
the age of nineteen j^ears, and this he the said Richard Roe is ready to 
verify and prove : wherefore, he prays judgment, if the said John Doe 
ought to have or maintain his aforesaid action against him, etc. 

Thomas Felder, Deft^s Atfy. 

An Act to make void the Contracts of Minors, with the exceptions therein 

stated. — Approved Dec. 11, 1858. 

89. Sec I. Re it enacted^ That all contracts of minors, shall be abso- ^^ , . 
lutely void, except for necessaries ; and that no contract of a minor shall be minors with 
good for necessaries, unless the case, or cases, is or are such that the parent necessaries, 
or guardian of such minor, shall refuse or fail, and does refuse and fail, to ^^^ recov- 
supply such minor with necessaries; and the burden of proof, of which 
fact, shall be upon the j)arty furnishing such necessaries. 



ered. 



others. 



An Act more effectually to protect the interests of parties Plaintiffs, in 
suits commenced against Joint-Obligors or Promissors. — Approved Dec. 
19, 1823. 

90. In all cases which hereafter may be commenced against joint- Plea of ipfan- 
obligors or promissors, and any one or more of the parties, defendants, cy sustained, 
may plead infancy, and such plea be sustained, the action shall not, as more of^the 
heretofore, abate, but the court shall award judgment, as in cases of non- defendants, 
suit, in favor of the party or parties so pleading, and permit the plaintiff action to pro- 
to proceed as^ainst the other defendant or defendants to said suit, without ^^®^ ,^^ *^ *^® 
lurtner delay or costs. 

Pka of the Statute of Limitation. 

Gi:oRGiA—JiozrsTO]sr county. 

,^^ 1 Assumpsit in the Superior Court of said County. 

RICHARDROE. ) ^J5n7 Term, 1859. 

And for further answer in this behalf, the defendant says, that the 
Plaintiff ought not to have or maintain his aforesaid action against him, 
because he says, that he the said Richard Roe, [or if by an Executor or 
Administrator, say, " the said Richard Roe, deceased,"] did not at any 
time within six years, next before exhibiting of the said action of the 
said Plaintiff in th^ behalf, undertake or promise, in manner or form 
as the said Plain^fif hath thereof complained against him the said 
defendant. And this he is ready to verify and prove as this honor- 
able Court may order and direct, etc. 

James A. Pringle, De/H's Atfy. 



JOHN DOE 



42 JUDICIARY.— DECLARATION, PLEA, ETC. 

Another Form, — Because He says, that the supposed cause of action 
in the said writ mentioned, did not accrue to the said Plaintiff at any 
time within six years before the exhibiting of the writ of the said 
Plaintiff against him the said defendant in this behalf, in manner and 
form as the said Plaintiff hath thereof complained against him the said 
defendant. And this he is ready to verify and prove-: wherefore, etc. 

Plea of set-off . 

G^O'RQ^lk— HOUSTON COUNTY. 
JOHN DOE j Assumpsit in the Svperior Court of said County. 
RICHARD EOK j ^P^^^ Term, 1859. ^ 

And for further Answer in this behalf, as to all the said several 
supposed promises and undertakings in the Plaintiff's declaration 
mentioned, except as to the sum of fifty dollars parcel, etc. the said 
defendant by leave of the Court here, for this purpose first had and 
- obtained, according to the form of the statue in such case made and 
provided, says, that the said Plaintiff ought not to have or maintain 
his aforesaid action thereof against him, because he says, that the said 
Plaintiff before and at the time of the institution of the action of the 
Plaintiff' against the Defendant, in this behalf, was and from thence 
hitherto hath been and still is indebted to the Defendant in a large sum 
of money, to wit, the sum of one hundred dollars (here state fully and 
at large the subject matter of the set-off, whether it be Bond, Note or 
Account, etc.) Which said sum of money so due and owing from the 
Plaintiff to the Defendant, exceeds the damages sustained by the 
Plaintiff, by reason of the non-performance by him the said Defendant 
of the several supposed promises and undertakings in the said writ 
mentioned, except as to the sum of fifty dollars, parcel, etc. And out 
of which said sum of money, so due and owing, from the Plaintiff to 
the Defendant, he the said Defendant is ready and willing and hereby 
offers to set-off and allow to the Plaintiff the full amount of said dam- 
ages, except as aforesaid, according to the form of the statute in such 
case, made and provided. All this, he the Defendant, is ready to 
verify and prove: wherefore, he prays judgment if the Plaintiff ought 
to have or maintain his aforesaid action against him, etc. 

Thomas Felder, Defth Att^y, 

An Act to enable Defendants in actions at common-law, to give in evidence, a 
Partial Failure of the Consideration of the Contracts upon which such ac- 
tion may he brought. — Approved Dec. 26, 1836. 
Partial fail- ^^* ^^^' ^' ^^^^^ ^"^ after the passage of this act, whenever any action 
ure of consid-Or actions shall be commenced at common-law, founded upon any contract or 
eration may contracts, it shall and may be lawful for the defendant or defendants to such 
be pleaded, action or actions, upon the trial thereof, to give in evidence to the jury, that 
the consideration or considerations, upon which said contract or contracts, are 
or were founded, have partially failed. Any thing in any law or custom, to 
the contrary notwithstanding : Provided^ that such plea of partial failure 
shall only be pleaded in such cases, under such circumstances, and between 
When plea g^ch parties, as would now admit and allow the plea of total failure of con- 
allowed- sideration. 

Sec. II. [Repeals conflicting acts.] 



JUDICIARY.— DECLARATION, PLEA, ETC. 43 ' 

Plea of Partial Failure of Consideration, 

JOHN DOE \ GEORGIA— ^0 USTOISF COUNTY. 

^'«- J- Assumpsit in the Superior Court of said County. 

RICHARD ROE. j J^^^H rp^j.^^^ ^859. 

And for further answer in this behalf the Defendant saith, that the 
consideration for which the Note, the subject-matter of the Plaintiff's 
action, was given, has partially failed in this, to wit, for that the said 
Note was given for a certain Negro Boy named Step^ of the age of 
seventeen years ; which Negro Boy, the Plaintiff, by his Bill of Sale, 
dated the first day of May, in the year eighteen hundred and fifty- 
eight, sold and warranted to Defendant to be sound and well, (which 
Bill of Sale is here in Court to be shown.) And the Defendant avers 
that at the time of the sale of the said Negro Boy to him by the Plain- 
,tiff, and before, he was unsound and unwell, to wit, that said Negiv 
Boy was and is accustomed occasionally to having fits. And Defend- 
ant avers that by reason of said Negro Boy being diseased, as afore- 
said, he is greatly reduced in value, to wit, the sum of five hundred 
dollars: wherefore, Defendant says, that the consideration of said Note 
has failed to the amount of five hundred dollars, of which partial fail- 
ure of consideration the Plaintiff, then and there, had notice. And 
this the Defendant is ready to verify and prove, etc. 

JAMES A. Pringle, Be/H's Atfy, 

Plea of Total Failure of Consideration, 

JOHN DOE \ GEORGIA-^^O USTON COUNTY. 

^•^- > Assumpsit in the Superior Court of said County, 

RICHARD ROE. ) j^^^-^ rj^^^^^^ ^^§59. 

And for further Answer in this behalf, the Defendant saith, that 
the consideration for which the Note, the foundation of the Plaintiff's 
suit, was given, has wholly and entirely failed, in this, to wit, for that 
said Note was given for the purchase of a certain Negro Boy named 
Step, about seventeen years of age ; which Negro Boy the Plaintiff (by 
his Bill of Sale, here in Court to be shown, dated t\\Q first day of May, 
eighteen hundred and fifty^ight,) sold and warranted to be sound and 
well : which said Negro Boy Defendant avers was, at the time of the 
purchase aforesaid, and previously, unsound and unwell, in this, to 
wit, that said Negro Boy is addicted periodically, that is, monthly, to 
having j^/s, which render him unserviceable. By reason whereof, said 
Negro Boy, was heretofore, and now is, of no value whatever to De- 
fendant. Which failure of consideration the Plaintiff, then and there, 
had notice : and this the Defendant is ready to verify and prove, etc. 

John M. Giles, Left's Atty. 



Plea of Ne Unques Executor. 



JOHN DOE 



vs. 
RICHARD ROE 

Ez'r of C. Smith, dec. 



GEORGIA— ^(9 USTON COUNTY, 



Assumpsit in the Superior Court of said County. 
April Term, 1859. 
And for further Plea in this behalf, the Defendant says, that the 
Plaintiff ought not to have or maintain his aforesaid action against 



44 JUDICIARY.— DECLARATION, PLEA, ETC. 

him, because lie says, that he, Defendant, never was Executor of the 
Will and Testament of Charles Sr)iith^ deceased ; nor ever administered 
of the goods, chattels and estates, which were of the said Charles 
Smith, deceased, at the time of his death, as Executor of the Will and 
Testament of said Charles Smith, deceased, in manner and form as the 
Plaintiff hath in his said Writ, in this behalf, alleged, etc. 

Thomas Felder, Deffs Att^y. 

Plea of Plene Administravit. 
JOHN DOE j Q^Y.O'RQ^lk— HOUSTON COUNTY. 

RICHAKD KOE I Assumpsit in the Superior Court of said County. 
Ex'r ofC. Smith, dec J April Term, 1859. 

And for further Plea in this behalf, the Defendant says, that the 
Plaintiff ought not to have or maintain his aforesaid action thereof 
against him, because he says, that he, the Defendant, hath fully ad- 
ministered, all and singular, the goods, chattels and estates, rights and 
credits, which were of said Charles Smith, deceased, at the time of his 
death, and which ever come to the hands of the Defendant, as Executor 
as aforesaid, to be administered. And the Defendant further avers, 
that he hath not, nor on the day of the commencement of the action 
of the Plaintiff, in this behalf, or at any time since, had any goods or 
chattels or estates which were of said Charles Smith, deceased, at the 
time of his death, in his hands, as Executor, as aforesaid, to be admin- 
istered. And this the Defendant is read}^ to verify and prove : vrhere- 
fore, he prays judgment, if the said Plaintiff ought to have or maintain 
his aforesaid action thereof against him, etc. 

Thomas Felder, BefVs Atiy. 



JOHN DOE 

vs. 
RICHARD ROE, 

Ex^r of C. Smith, dec. 



Plea of Plene Administravit Prceter. 

GEOUGJ A— HOUSTON COUNTY. 

Assumpsit in the Superior Court of said County. 
April Term, 1859. 
And for further Answer in this behalf, the Defendant, Executor of 
the Will and Testament of Charles Smith, deceased, saith, that said 
Plaintiff ought not to have or maintain his aforesaid action against 
him, except as to the sum of one hundred dollars, because he says, that 
he, the said Defendant, hath fully administered, all and singular, the 
goods, chattels and estates, which were of the said Charles Smith, de- 
ceased, at the time of his death, and which ever came to the hands of 
the Defendant, to be administered ; except goods and chattels, rights 
and credits, of the value of one hundred dollars. And that he, the De- 
fendant, hath not, nor on the day of the commencement of the action 
of the Plaintiff, in this behalf, or at any other time since, had any 
goods or chattels which were of the said Charles Smith, deceased, at 
the time of his death, in his hands to be administered, except said 
goods and chattels of the value aforesaid. And this he is ready to 
verify and prove: wherefore, he prays judgment, if the said Plaintiff 
ought to have or maintain his aforesaid action against him, except as 
to the sum of one hundred dollars^ etc. 

John M. Giles, BefUs AtCy. 



JUDICIARY.— DECLARATION, PLEA, ETC. 45 

Tlea of the General Issue. 

JOHN DOE \ GEORGIA— J/0 USTOJST COUNTY. 

^*- >• Assumpsit in the Samrior Court of said County. 

EICHAKD ROE. j ^^^il Term, 1859. 

And now, at the term of the Court aforesaid, comes the Defendant 
in said case, bj his attorney, James A. Pringle^ and defends the wrong 
and injury, when, etc., and for Answer saith, that the said Plaintiff 
ought not to have or maintain his aforesaid action against the Defend- 
ant, because Defendant says, that he did not undertake and promise, 
in manner and form, as the Plaintiff, in his Writ, hath complained 
against him. And of this he puts himself upon the country, etc. 

James A. Pringle, Defies Atfy. 

Note given in Evidence, 

Ten days after the date hereof, I promise to pay Charles Smithy or 
bearer, five hundred dollars for value received, this May 1, 1858. 

ElCHARD EOE. 

Verdict of the Jury. 

"We, the jury, find for the Plaintiff the sum of five hundred dollars 
for his principal debt, with interest on that sum from the eleventh day 
oi May^ eighteen hundred and fifty-eightj and costs of suit. 

Marcus Kunze, Foreman. 

Confession of Judgmeiit hy the Defendant. 

April Term, 1859. I confess Judgment to the Plaintiff for the sum 
o{ five hundred dollars principal debt, with interest from the eleventh 
day of May. eighteen hundred tdLiid fifty -eighty and costs of suit ; reserv- 
ing the right of appeal. 

KiCHARD Roe, Deft 

Judgment of the Court. 

HOUSTOJSr SUPERIOR COURT, April Term, 1859, 

Whereupon, it is ordered, considered and adjudged by the Court 
here, that the Plaintiff do recover against the Defendant, the sum of 
five hundred dollars, for his principal debt. The sum of forty dollars, 
for his interest up to this date, and the sum of fifteen dollars, for his 
costs in this behalf, laid out and expended ; and the Defendant in 
mercy, etc. Judgment signed this April 25, 1859. 

Thomas Felder, PVff's Atfy. 

An Act to simplify and curtail Pleadings at Law. — A2yproved Dec. 2t, 

1847. 

92. Sec. I. De it enacted., That from and after the passage of this act, 
the form of a declaration for the recovery of real estate and mesne profits, 
may be as follows ; (any law, usage, or practice, to the contrary notwith- 
standing,) to wit — 



i6 



JUDICIARY.— DECLARATION, PLEA, ETC. 



To the Superior Court for said County. The Pe- 
tition of A B, showeth that C D, of said County, is 



Profits. 



Form of ac- STATE OF GEORGIA, 
tion for Land County. 

and Mesne ^^ possession of a certain tract of Land, in said County, {here describe 
the JLand,) to which your Petitioner claims Title. That the said C D, 
has received the Profits of said Land, since the day of 

18 ; of the yearly value of dollars; and refuses 

to deliver the said Land to your Petitioner, or to pay him the profits 
thereof. Wherefore, your Petitioner prays Process may issue, requiring 
the said C D, to be and appear at the next Superior Court, to be held 
in and for said County, to Answer your Petitioner's Complaint. 

93. Sec. IT. The form of an action for the recovery of Personal Prop- 
erty, may be as follows, to wit — 



Form of ac- 
tion for Per- 
sonal Prop- 
erty. 



Form of ac- 
tion on Note, 
Bill, Bond, 
etc. 



Oyer maybe 

demanded, 

etc. 



Form of ac- 
tion on an Ac 
count. 



STATE OF GEORGIA, } To the Court of said County. The Pe- 

County. j" tition of A B, showeth that C D, of said County, is 

in possession of a certain {here describe the property) of the value of 

dollars, to which your Petitioner claims Title. That the 

said C D, has enjoyed the Profits of the same since 

That the said is of the yearly value of dollars. 

And that the said C D, refuses to deliver said to your Peti- 

tioner, or to pay him the Profits thereof. Wherefore, your Petitioner 
prays Process may issue, requiring the said C D, to be and appear at the 
next Court to be held in and for said County, to Answer your 

Petitioner's Complaint. 

94. Sec. III. The form of an action to recover money on a note, bill, 
bond, receipt, or written promise of any description ; by adding a copy of 
which, with the endorsers' names, (if any,) and credits, shall be appended. 
(And when the suit is on a bond, the breach from which arises the right 
of action, shall be set out plainly,) — may be as follows, to wit — 

STATE OF GEORGIA, ) To the Court of said County, The Pe- 

County. j tition of A B, showeth that C D, of said County, is 

indebted to him in the sum of dollars, besides interest, on a 

dated , and due ; which the said 

C D refuses to pay. Wherefore, your Petitioner prays Process may issue, 
requiring the said C D, to be and appear at the next Court 

for said County, to Answer your Petitioner's Complaint. 

Provided nevertheless., that when any defendant shall, at the ap- 
pearance term of such cause, demand oyer of any note, bill, bond, receipt, 
or other instruments sued on, the plaintiff shall be compelled to produce 
the same to the defendant, for the purpose of examination. 

95. Skc. IY. The form of an action on an account, may be as follows, 
to wit — 

STATE OF GEORGIA, ) To the Court of said County. The Pe- 

County. j tition of A B showeth that C D, of said County, 

is indebted to your Petitioner dollars, on an Account, as will 

fully appear by reference to a bill of particulars, hereunto annexed ; which 
Account the said C D neglects to pay. Wherefore, your Petitioner 
prays Process may issue, requiring the said C D, to be and appear at the 
next Court, to be held for said County, to Answer your Peti- 

tioner's Complaint. 

96. Sec. V. The form of an action to recover moii^y on a judgment, 
may be as follows, to wit — 



JUDICIARY.— DECLARATION, PLEA, ETC. 



47 



Form of ac- 
tion on a 
Judgment! 



County 
in the sum of 



Form of ac- 
tion on 
Breach of 
Warranty. 



j^TATE OF GEORGIA, ) To the Court for said Coicnty. The Pe- 

County. j tition of A B, showeth that C D, of said County, is 
indebted to your Petitioner dollars, besides interest, on a Judg- 

ment obtained by your Petitioner, against the said C D, at a {name the 
Courts) Court, held on the day of 18 , in the 

( County^ District, or Toicii^ ) of , in the State of , 

as will fully appear by reference to an Exemplification of the proceedings 
in said case. That the said Judgment is unsatisfied, and that the said 
C D neglects to pay the same. Wherefore, your Petitioner prays Pro- 
cess may issue, requiring the said C D to be and appear at the next 
Court, to be held for the County of , then and 

there, to Answer the Plaintiff's Complaint. 

97. Sec. VI. The form of an action for breach of warranty, on a deed, 
may be as follows, to wit — 

STATE OF GEORGIA, ) To the Court of said County. The Pe- 

} tition of A B, showeth that C D is indebted to him 
dollars ; for that, on the day of 

,18 , the said C D, executed to your Petitioner, a War- 
rantee Deed, to a certain tract of Land, {describe the Land.,) for the 
sum of dollars, paid by your Petitioner to the said C D. 

That your Petitioner has been evicted from said lot of Land, and the 
said C D, refuses to indemnify your Petitioner for his Damage in that 
behalf. Wherefore, your Petitioner prays Process may issue, requiring 
the said C D, to be and appear at the next Court, for said 

County, to Answer your Petitioner's Complaint. 

98. Sec. VIL ISTo departure from the before-presciibed forms, shall 
work a non-suit, provided- the plaintiff shall plainly and distinctly set forth 
his cause of action. 

99. Sec. VIII. It shall and may be lawful, in pleading, to set out 
amounts and dates in figures, or what is sometimes called the Arabic 
Numerals. 

Sec. IX. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to curtail and simplify Civil Pleadings. — Approved Jan .29, 1850. 

100. Sec. I. Be it enacted., That from and after the passage of this 
act, the form of an action for words, may be as follows, to wit — 

STATE OF GEORGIA, ) To the honorable Court of said County. Form of ac- 

County. j The Petition of A B, showeth that C D, of said tion for 
County, has injured and damaged your Petitioner, in the sum of Slander, 

dollars, by falsely and maliciously saying, of and concerning your Peti- 
tioner, on the day of 18 , the following false 
and malicious words, to wit : 

Wherefore, your Petitioner prays Process may issue, requiring the said 
C D, to be and appear at the next Court, to be held in and 

for said County, then and there to Answer your Petitioner's Complaint. 

101. Sec. II. Ko plaintiff shall be non-suited for want of form, who No non-suit 
shall set forth his cause of action as plainly and distinctly as the charge f<5r want of 
of slander is set forth in the form of declaration by the first section of this 
act prescribed. 

An Act pointing out the mode of collecting a certain description of debts 
therein mentioned. — Approved Dec, 19, 1848. 



No non-suit 
allowed. 



Figures may 
be used. 



form. 



48 JUmOIARY.— DECLAKATION, PLEA, ETC. 

Kepreseu- 102. From and immediately after the passing of this act, where any per- 
tative of de- son shall be in possession, either in his own right, or in any other capacity, 
ceased Obli- ^^ ^^y. j^q^q ]^[i\ ^oud, or other obli2:ation in writing^, siofned by two or 
gor maybe -^ t r- ^^ o'c? j ^ 

sued ia the i^^re persons, and one or more oi the persons whose names are so signed 

same action as aforesaid, shall die before the payment of the money, or the compliance 
with the sur- with the condition of sucli bond or other obligation in writing, the person or 
vivor. persons holding such note, bill, bond, or other obligation in writing shall 
not be compelled as heretofore, to sue the survivor or survivors alone, but 
may, at his, her or their discretion, sue the survivor or survivors, or the 
representatives of such deceased person or persons, or the survivor or 
survivors, in the same action with the representative or representatives of 
such deceased person or persons. Any law, usage or custom, to the con- 
twelve trary notwithstanding : Provided^ nothing in this act shall be so construed 
months have ^^ to authorize the bringing of any action, of any kind whatever, against 
elapsed, the representative or representatives of any estate or estates, until twelve 
months after the probate of the will, or the granting of letters of adminis- 
tration on such estate or estates. 

Aisr Act to regulate the mode of prosecuting actions against Contractors 

and Co-Partners, in certain cases. — Approved Dec. 18, 1820. 

Whereas^ doubts have arisen as to the mode of prosecuting actions 

against joint-contractors and co-partners, when one or more cannot be 

Insults found, or reside without the limits of this State, for remedy whereof — 

against Joint- 103. Be it enacted^ That from and after the passing of this act, that 

Contractors ^yi^enever two or more joint-contractors or co-partnei's, are sued in the 

ners, judg- same action, and a service shall be effected on one or more of the said 

ment against joint-contractors or co-partners, and the sheriff, or other officer, serving the 

party served. Writ, shall return that the other defendant or defendants are not to be found, 

it shall and may be lawful for the plaintiff to proceed to judgment and exe- 

What prop- cution against the defendant or defendants who are served with process, in 

erty may be ^he same manner as if he, she or they, were the sole defendant or defendants. 

evie upon. y)^^ Sec. II. Judgments so obtained shall bind, and execution may be 

levied, on the joint or co-partnership property ; and also, the individual 

property, real and personal, of the defendant or defendants, who have 

been served with a copy of the process; but shall not bind or be levied on 

the individual property of the defendant or defendants who are not served 

Avith process. 

Sec. III. All laws and parts of laws repugnant to this act, are hereby 
repealed. 

An Act to facilitate the recovery of Personal Property, in certain cases. — 
Ap)proved Dec. 24, 1827. 

W/iereas, it frequently hapjDcns that suits in the different courts of law 
and equity in this State for personal property, continue for a number of 
years, and that after the commencement and before the end of said suits, 
the property in dispute increases, or has issue, which cannot be recovered 
Issue sub- in any other way than by resorting to a new action ; for remedy whereof — 
sequently 105. De it enacted, That while any suit or action is now pending, or 
born, may be ^^ay hereafter be instituted, in any court of law or equity in this State, for 
the'^same ac^ personal property, the issue of said property born or to be born after the 
tion. commencement of said suit or action, shall and may be recovered in the said 
Declara- suit or action. And it shall be the duty of the court to allow the declara- 
tion ™^y^6 tion or bill to be amended at any stage of the said suit or action, so as to 
amended, induce the said issue so born or to be born. Any law, usage or practice to 
the contrary notwithstanding. 



JUDICIARY.— DECLARATION, PLEA, ETC. 49 

An Act to authorize Plaintiffs in Ejectment to recover such Mesne Profits 
as they may be entitled to in said action of Ejectment, by way of Dam- 
ages; and to prevent a sejDarate action for Mesne Profits. — Approved 
Dec. 19, 1834. 

106. Sec. I. It shall be lawful for all plaintiffs in ejectment to add a Count for 
count or counts in their writ of ejectment, and to submit evidence to the Mesne Profits 
jury, and to recover by way of damages, all such sum or sums of money *^^^^^^?^^" 
to which they may be entitled by way of mesne profits, together with the 
j^remises in dispute. 

107. Sec. II. It shall be the duty of the several clerks of the superior Count for 
courts, to incorporate in the execution of Aa5ere /(2C^as jl90Sse6's^ow€??^, a p "^^^"f' r^ 
clause directing the sheriff to collect all such sums of money as, by the included^ in 
finding of the jury, shall have been awarded to the plaintiff in ejectment WritofPos- 
as mesne profits. session. 

108. Sec. III. No plaintiff or plaintiffs in ejectment, in cases which no separate 
may hereafter be instituted, shall be permitted to have and maintain a sep- action for 
arate action in their behalf, for mesne profits which have accrued, or may Mesne Profits, 
accrue, to him or them, from the premises in dispute. 

109. Sec. IY. In case an action of ejectment be brought by the de- Action \>^ 
fendant in the first action of ejectment, for the premises recovered of him. Defendant in 
and a verdict obtained in his favor, it shall be lawful for him to institute first action, 

TOT IVlPRTlf^ 

an action on the case for such damages as may have been collected from pi-^fits how 
him as mesne profits in the first action ; and under such action, it shall be brought, 
lawful for liim to give in evidence the verdict obtained by him in the 
second action; which shall be deemed and taken to prevent the judgment 
obtained in the first action, as operating an estoppel. 

Action of Ejectment. 

STATE OF GEOKGIA, ) ^ , ,, . ^ y • 7 ^ 

Houston County. [ ^0 the Superior Court of said County. 

The Petition of John I)oe^ respectfully shovveth, that he has sustained 
damage of Richard Roe, of said County, the sum of Jive thousand dol- 
lars; for that the said Richard Roe, heretofore, to wit, on the first dsiy 
of January^ eighteen hundred and fifty-five, with force and arms, in 
said county, entered into a certain lot of land .^ with its appurtenances, 
to wit, n umber ybr^?/-?7,me, in the tenth district of said county, contain- 
ing tioo hundred two and a half acres, more or less, (agreeably to original 
survey) one hundred acres of which are well improved; which Charles 
/Smith had demised to your petitioner for a term which has not yet 
expired, and ejected Petitioner from his said Farm ; and other wrongs 
and injuries, then and there did, to the great damage of Petitioner, and 
against the peace and dignity of said State. And thereupon, Peti- 
tioner by James A. Pringle, his Attorney, complains, that whereas the 
said Charles Smith, on the saiiX first day of January, eighteen hundred 
andi fifty five, had demised the said lot of land, with its appurtenances, 
to Petitioner, to have and to hold the same, to Petitioner and his as- 
signs, from the said first day of January, eighteen hundred and fifty- 
five, for and during and unto the full end and term of ten years, from 
thence next ensuing, and fully to be completed and ended. By virtue 
of which said demise, Petitioner entered into the said lot of land with 
its appurtenances, and became and was thereof possessed, for the said 
term so to him thereof granted. And Petitioner being so thereof pos- 

4 



50 JUDICIARY.— DECLAEATION, PLEA, ETC. 

sessed, the said Richard Roe^ afterwards, to wit, on tlie first day of 
January^ eighteen hundred and fDrtij-siXj with force and arms, &c., en- 
tered into the said lot of land with its appurtenances, which the said 
Charles Smith had demised to Petitioner, in manner and for the term 
aforesaid, which has not yet expired, and ejected Petitioner from his 
said Farm, and other wrongs and injuries to Petitioner, then and there 
did, to tiie great damage of Petitioner and against the peace of said 
State ; wherefore, Petitioner saith that he is injured and hath sustained 
damage of said Richard Roe to the value of four thousand dolhirs. 

And Petitioner avers that he hath sustained other and further dam- 
age of said Richard Roe^ to the amount of one thousand dollars, for 
that the said Richard Roe, heretofore, to wit, on ihe. first day of Janu- 
ary, eighteen hundred and fifty-six, with force and arms, &c., broke 
and entered into lot of land number forty-nine, in the tenth district of 
said County, (with its appurtenances,) containing two hundred two 
and a half acres, agreeably to original survey, one hundred acres of 
which are well improved, and ejected and expelled, put out and 
amoved Petitioner from his possession and occupancy thereof, and 
kept and continued Petitioner so expelled and amoved for along space 
of time, to wit, from the said fii^st day of January in the year of our 
Lord eighteen hundred awd fifty-six, until the day and year of the in- 
stitution of this action, and still heeps Petitioner amoved and 'put out of the 
possession and occupancy of said lot of land ; and during that time took 
and had, (and still takes and has,) and received to his own use and 
benefit, all the issues and profits of said lot of land with its appurte- 
nances, being of great yearly value, to wit, of the yearly value of two 
hundred dollars: whereby Petitioner, during all the time aforesaid, not 
only lost the issues and profits of said lot of land with its appurte- 
nances, but was deprived of the use and means of cultivating the same, 
and was forced and obliged to, and did necessarily, lay out and expend 
divers large sums of money, amounting in the whole to the sum of 
five hundred dollars, in and about the recovering of the possession of 
the said lot of land with its appurtenances ; and other wrongs and in- 
juries to Petitioner, then and there, did against the peace of said State, 
and to the damage of Petitioner one thousand dollars : wherefore, Peti- 
tioner brings suit and prays Process may issue, requiring said Richard 
Roe, personally or by Attorney, to be and appear at the Superior Court 
to be held in and for said County, on the fourth Monday in April 
next, then and there, to Answer Petitioner in an action of Trespass 
and Ejectment, and for Mesne Profits. And Petitioner will ever pray, 
&c. James A. Pringle, PVff's Atfy. 

Note. — The pleader will perceive that there is hut one demise laid in the above Writ. 
Where there are more Conveyances than one, a separate and independent Demise should 
be laid upon each. When it is necessary to have more than one Demise in the Declara- 
tion, commence the second, third, &c., thus : "And whereas, also, the said Richard Roe, 
on the day and year first aforesaid, with force and arms, &c., entered into another lot of 
land with its appurtenances, to wit," &c. 

Entry by the Clerk on the back of the Writ. 
Filed in Office, this 16th day of May, 1859. 

William H. Miller, Clerk. 



JUDICIARY.— DECLARATION, PLEA, ETC. 51 

Process annexed by the Clerk. 

STATE OF GEORGIA, ) rv .-l ^t. -^ r - 1 n . 

Houston County. | "^^ ^^^ Sheriff of said County— Greeting, 

The Defendant Richard Roe^ is hereby notified, personally or by 
Attornej^ to be and appear at the next Superior Court, to be held in 
and for said County, on the fourth Monday in April next, then and 
there to Answer the Plaintiff's demand, in an action of Trespass and 
Ejectment, and for Mesne Profits, as in default thereof the Court will 
proceed as to justice shall appertain. 

Witness^ the honorable Henry G, Lamar ^ Judge of said Court ^ this May 
15, 1859. 

William H. Miller, Clerh. 

Service by the Sheriff. 

Served the defendant, personally^ with a copy of this Writ. This 
May 16, 1859. 

Madison Marshall, Sheriff'. 

Notice to Appear. 

Perry, May 17, 1859. 
Mr. James Johnson: — I am informed that you are in possession of, 
or claim title to, the premises in the accompanying Writ of Trespass 
and Ejectment, and for Mesne Profits, mentioned, or some part there- 
of; and I being sued, in this action, as a casual ejector only, and hav- 
ing no claim, or title, to the same, do advise you to appear at the next 
term of the Superior Court to be held in and for the County of Hous- 
ton^ on the fourth Monday in April ensuing, by some Attorney of said 
Court, then and there ; by Eule of the same Court, to cause yourself 
to be made Defendant in my stead ; otherwise, I shall suffer judgment 
therein to be entered against me, by default, and you will be turned 
out of possession. Yours, &c., 

KiCHARD EOE. 

Consent Rule. 

JOHN DOE ] 

On the demise of Smith, 

for lot of land number j t n -^r -n n 

forty-nine, in the tenth Trespass and Ejectment, and for Mesne Pronts, 

district of Houston \ April Term, 1859. 

County, ^ ' 

vs. 

RICHARD EOE, 

Casual Ejector. 

On the consent of the Attorneys for both parties, in the above case, 
it is ordered by the Court, that James Johnson be made Defendant in 
the stead and place of the now Defendant Richard Roe, and do, forth- 
with, appear at the suit of the Plaintiff, and forthwith, plead thereunto, 
not guilty ; and upon the trial of the issue, confess lease, entry and 
ouster, and insist upon the title only ; otherwise, let judgment be enter- 
ed for the Plaintiff against the now Defendant Richard Roe, by default. 
And if upon the trial of the said issue, the said James Johnson shall 
not confess lease, entry and ouster, whereby the Plaintiff shall not be 



52 JUDICIARY.— DECLARATION, PLEA, ETC. 

withheld from the Plaintiff by the Defendant, whereof the Defendant 
able further to prosecute his writ against the said James Johnson^ then 
no costs shall be allowed for not further prosecuting the same, but the 
said James Johnson shall pay costs to the Plaintiff, in that case to be 
taxed. And it is further ordered, that if upon the trial of the said is- 
sue, a verdict shall be given for the said James Johnson^ or it shall hap- 
pen that the Plaintiff shall not further prosecute, by said writ, for any 
other cause than for not confessing lease, entry and ouster, then the 
lessor of the Plaintiff shall pay to the said James Johnson^ costs in that 
case to be adjudged. 

James A. Pkingle, PVff's Atfy. 
Sam'l D. Killen, Defl's Att'y, 

Plea of the Defendant. 
JAMES JOHNSON, DePtO April Term, 1859, Trespass and Ejectment 

JOHN DOE, on the ^ ^"^ ^^"^ Mesne Profits. 
Demise of Smith. J And the said Defendant, by Samuel D. Killen 
his Attorney, comes and defends the force and injury, when, &c., and 
says, that he is not guilty of the supposed Trespass and Ejectment, 
above laid to his charge, in manner and form as the said John Doe hath 
above thereof complained against him. And of this the Defendant 
puts himself upon the country, &c. 

Samuel D. Killen", Deft's Atfy. 

Verdict of the Jury. 

We, the Jury, find in favor of the Plaintiff, the premises in dispute. 
We further find the sum oi five hundred dollars for Mesne Profits and 
the costs of suit. 

William H. Talton, Foreman. 

Judgment of the Court, 

Whereupon, it is considered by the Court here, that the Plaintiff do 
recover against the Defendant, lot of land number forty-nine^ in the 
tenth district of Houston County, with its appurtenances, and that a 
Writ of Possession issue therefor, in favor of the Plaintiff. And it 
is further ordered, that the plaintiff do recover against the Defendant, 
the sum o^ five hundred dio\\di.vQ for Mesne Profits, and the further sum 
of twenty dollars for his costs in this behalf laid out and expended ; and 
the Defendant in mercy may, &c. Judgment signed this April 25, 1859. 

James A. Pktngle, Pl'ffs Att'y. 

Habere Facias Possessionem — ( Writ of Possession.^ 

STATE OF GEORGIA, \ m, ^j ^ cii -^ r -j n / m t- 

Houston County. ] ^^ ^^^^ b her iff of said County— Greeting. 

JOHN doe, on the "] Whereas, the Plaintiff has, lately in our Su- 
Demiseof Smith, ^ p^^-^^, q^^^^ ^^^ ^^^-^ County, by the judgment 

JAMES JOHNSON, Deft. J of Said Court, recovered of the Defendant lot 
of land number forty-nine in the tenth district of said County, (with its 
appurtenances,) containing two hundred two and a half Sicres, agreeably 
to original survey ; which premises have been and are still, unjustly 



JUDICIARY.— DECLARATION, PLEA, ETC. 53 

is convicted, as appears to us of record. And for as much as it is ad- 
judged in said Court, that the Plaintiff have execution upon his said 
judgment against the said Defendant, according to the force, lorm and 
effect of his said recovery; therefore, we command you, that without 
delay, you deliver to the Plaintiff, full and quiet possession of the said 
premises so recovered, with the appurtenances. 

We also, command you, that of the goods and chattels, lands and 
tenementsof the Defendant, in your County, you cause to be made the 
sum of five Mindred doUeiYS^ which in our same Court, were adjudged to 
the Plaintiff as Mesne Profits of said premises, against the Defendant ; 
and the further sum of tiventy dollars for costs and charges, by the 
Plaintiff', in that behalf, expended ; whereof the defendant is convicted 
as appears to us, of record. And have you those moneys before our 
said Court, on the fourth Monday in October next, to render unto the 
said Plaintiff for his damages aforesaid ; and have you then and there, 
this writ. 

Witness^ the honorable Henry 0. Lamar ^ Judge of said Gourt^ this May 
1, 1859. 

William H. Miller, Clerk. 

Return by the Sheriff. 

Executed the within Writ by putting the Plaintiff' in quiet posses- 
sion of the premises therein mentioned, on the fifth day oi' May, 1859. 
And have raised the sum of five hundred and twenty dollars, by the 
■sale of the Defendant s property /which sums of money I have now in 
Court, subject to its order. October 20, 1859. 

Madison Marshall, Sheriff. 

An Act to amend the Judiciary act of seventeen hundred and ninety- 
nine, so far as to perfect service, served in actions of Ejectment, for the 
recovery of Land and Mesne Profits. And to amend an act, entitled, 
" Complaint for the recovery of Real Estate and for Mesne Profits." — 
Approved Feb. 20, 1854. 

W^htreas, it frequently happens that an individual or individuals resid- 
ing in one County, have their Plantations to extend over the County-line 
in an adjoining county. And tohereas, there is no provision in the statute 
for the perfecting of legal process on such persons in actions of Ejectment 
or complaint — 

110. JBe it therefore enacted, That from and after the passage of this Where lands 
act, it shall he lawful for the clerk of the superior court of the county o^ ^^oth sides 
wherein such land may lie, to issue process in behalf of the plaintiff or ,. ^ounty 
plaintiffs, against the defendant or defendants; which process shall bec^ggt^beserv- 
directed to the sheriff, or if the defendant be a sheriff, it shall be directed ed. 

to the coroner of the county wherein such land may lie, and such sheriff' 
or coroner, as the case may be, shall be authorized to serve and return the 
same ; and such process and service shall be as valid as if the same had 
been directed to and served by the sheriff or coroner of the county where 
such defendant or defendants may reside. 

An Act to allow any Joint-Tenant, Tenant-in-Common, or other person 
having a part-interest in Lands or Tenements to maintain a separate 
action of Ejectment or Tresj)ass, and for other purposes. — Approved 
March 3, 1856. 



5 4 JUDICIARY.— DECLAEATION, PLEA, ETC. 

Joint Tenant, 111. Sec. I. Se it efiacted^ That from and after the passage of this 
etc., may sue act, it shall be lawful for any joint-tenant, tenant-in-common, or other 

tor injuries person having a part-interest in lands or tenements in this State, to have 
erty without ^"^ maintain an action of ejectment or trespass, for the recovery of such 
joining other lands or tenements, or injury thereto, without joining with him as plain- 
parties inter- tiff such other person or persons so interested : Provided^ that the judg- 
ested. ment rendered in all such suits shall in no way aifect the rights of any 
ftjcted by such ^^'^^^ persons SO interested in said lands or tenements, who are not parties 

judgment, to such suits. 

Aisr Act to change and simplify the Practice and Pleadings in this State ; 
to provide for the service of Writs of Scire Facias in certain cases, and 
to regulate the admission of Testimony in certain cases. — Approved 
Feb. 20, 1854. 
Amendments 112. Sec. I. JBe it enacted^ That from and after the passage of this 
may be made act, parties, plaintiffs and defendants, in the superior, inferior and cor- 
at any time, as poration courts of this State, whether at law or in equity, may in any 
stance. stage of the cause, as matter of right, amend their pleadings in all 
respects, whether in matter of form or matter of substance only ; but in 
case the party applying for leave to amend pleadings, or to open a default, 
shall have been guilty of negligence in respect to the matter of amend- 
ment or default, the court may compel him to pay his adversary, the 
costs of the proceeding for Avhich he moves, and may enforce other reason- 
able and equitable terms on him at discretion, not touching the real 
merits of the cause in controversy. 
How absent 113. Sec. II. That in all cases where a defendant duly served with 
defend't may process or subpoena, in any case at law or in equity, shall reside out of 
be notified of ^j^jg State, or remove therefrom during the pendency of said cause, and 
ties in^p^n^d-^^^ plaintiff or complainant shall die, his or her legal representatives may 
ing suits, he made parties by scire facias^ which scire facias shall be served by 
publication in some of the public gazettes of this State, once a month for 
four months, previously to the time [term\ of the court to which said 
scire facias is made returnable ; which publication, made by the sheriff 
or other executing-officer, shall be good and valid, to all intents and 
purposes. 
Exceptions 114. Sec. III. That [on all appeal] trials, or other trials in the last 
when to be resort, all exceptions to interrogatories, the execution of commissions, 
made, to in- commissioners, or answei* of witnesses examined under commission (when 
teiroga ones, ^^^ commission has been duly returned, and the same ordered or 
consented to be opened, and been for one day subject to inspection), 
shall be taken and determined before the case is submitted to the jury, 
otherwise the testimony shall be received, subject only to the objections 
that may be made for irrelevancy. All laws, usages and customs to 
the contrary notwithstanding. 

Ajst Act to prescribe the mode of perfecting service, and to regulate the 
proceedings in cases of /Scire Facias, on non-residents. — Approved Dec. 
11, 1858. 

Whereas, it frequently happens that persons becoming bail for defend- 
ants remove from this State before judgment on scire facias, and there 
being no mode, by the laws of this State, to perfect service on such bail ; 
for remedy whereof — 
Non-resident 115. Sec. I. Be it enacted, That from and immediately after the 
Defendant passage of this act, writs of scire facias may be served, in all bail cases, 
^fiTJ^^^^^ on non-residents, by public notice in a newspaper (in which the sheriff's 
cial^ ^^^^^ ^^ ^^^ county are published) for thirty days. 



JUDIOIAP^" -DT^rjT.AR^riON, PLEA, ETC. 55 

116. Sec. II. That after such publication, the plain tiff in 5c^V6 y(2C^as Cost how to 
may proceed to judgment thereon, as if personal service had been made on^^ taxed, etc. 
the defendant in scire facias ; and the cost of publishing said notice be 

taxed, in the bill of cost, against said defendant. Any law, usage or custom 
to the contrary notwithstanding. 

An Act to define and determine what stage of a suit at law shall be 
regarded the Commencement of Action. — Approved Dec. 23, 1843. 
Whereas., conflicting opinions exist in the different Judicial Circuits of 

this State, in reference to what stage in the progress of a suit at law, is 

the Commencement of Action — 

117. Sec. I. Be it therefore enacted., That from and after the passage Time of fil- 
of this act, the filing of the writ in office shall be regarded and considered ing the Writ 
the commencement of action : Provided., it shall be the duty of the commence- 
clerk to enter on the declaration the time when said declaration is filed "^^"tion ^ ^' 
in office ; to which entry said clerk shall sign his name. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to enable parties Plaintiff in suits commenced in the Superior 
and Inferior and other Courts of this State to Dismiss their Actions during 
the vacation of said Courts, on the same terms they are now authorized 
to Dismiss actions at the regular terms of said Courts. — Approved Dec. 
23, 1843. 
Whereas^ inconvenience and delay frequently occur, by reason that 

parties Plaintiff who commenced suits in the Superior or Inferior and 

other Courts of this State, cannot dismiss their Actions, except at the 

regular terms of said Courts — 

118. Sec. I. De it therefore enacted., That from and after the passage plaintiff may 
of this act, parties plaintiff, who have commenced, or may hereafter com- dismiss his suit 
mence suits in the superior, or inferior, and other courts of this State, be i^ vacation, 
and they are hereby authorized to dismiss their actions during the vaca- 
tion of said courts, on the same terms they are now authorized to dismiss 

actions at the regular terms of said courts : Provided., that such dismissal clerk to en- 
shall be first entered on the docket by the clerk of the court in which said ter dismissal, 
suit may be pending, during the vacation of said court. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to enable persons who have claims against Trust-Estates, to re- 
cover said Claims in a Court of Law, and to prescribe the manner in 
which the same shall be done. — Approved March 5, 18.56. 

119. Sec. I. When any person has any claim against any trust-estate Against trust- 
for services rendered to said estate, or for articles, or property, or money estate, recov- 
furnished for the use of said estate ; or when a court of equity would eivabie in 
render said estate liable for the payment of said claims, it shall be lawful ^"^ ^ ^ ^^' 
for such person to collect and enforce the payment of such claim in a court 

of law. 

120. Sec. II. The person having such claim, if the same exceeds the How suit to be 
sum of thirty \^fifty\ dollars, may file his petition setting forth the grounds instituted, 
of such claim, and also, how and in what manner said estate is liable for 

the payment of said claim ; and also, setting forth the name or names of the 
trustees and the cestid-que-trust. Which petition shall be filed in the office 
of the clerk of the superior or inferior court, under the same rules and 
regulations as in ordinary cases at common-law, and the subsequent pro- 
ceedings, shall be in all respects, the same. 



56 JUDICIARY.-DECLAEATION, PLEA, ETC. 

Extent of 121. Sec. III. The judgment that may be rendered in said case, shall 

Judgment, impose no personal liability on the trustee, or in any way render his 

property liable for the j^ayment of the same ; but said judgment shall only 

bind said trust-estate, and execution shall issue accordingly. 

Who made l^^- Sec IV. If there is no trustee the cestui-qxie-trust shall be made 

Defendant, the defendant, and the proceedings shall be in all respects, the same as 

when the trustee is the defendant. 
In justice's 123. Sec. V. When the claim does not exceed the sum of thirty 
Courts. [fifty] dollars, suit maybe brought in a justice's court, under the same 
rules and regulations as in ordinary suits in those courts ; saving only, that 
the summons shall set forth how and in what way, said trust-estate is liable 
Force of for the payment of said claim. And the judgment rendered in justice's 
Justice s fi. court shall have the same force and effect, as is herein-before prescribed in 
relation to judgments rendered in the superior and inferior courts. 
On what fi. fa. 124. Sec. YI. All executions issued upon judgments rendered under 
to be levied, the provisions of this act, shall specify in the body of the execution, the 
property on which the execution is to be levied, and it shall be levied on 
no other. 

Sec. VII. [Repeals conflicting laws.] 



Declaration, in the Superior or Inferior Courts. 

STATE OF GEORGIA, 1^ To the Superior Court of said County. 

Houston County. j" The Petition of Jolin Doe respectfully sboweth, 
that Richard Roe (Trustee of Jf/'s. Ann Sikes, a married woman, of said 
County,) as Trustee, as aforesaid, owes to and from your Petitioner un- 
justly detains, the sum of two hundred dollars; for that said Mrs. Ann 
Sihes, for whom said Richard Roe is Trustee, has a separate interest 
and estate in a certain Plantation in said County, worked by said Trus- 
tee, for the exclusive benefit and advantage of said Mrs. Ann Sikes. 
And your Petitioner avers, that during the year eighteen hundred and 
fifty-eight, he furnished said Richard Roe, Trustee as aforesaid, for the 
use and benefit of the Plantcdion aforesaid, four hundred bushels of 
Corn, at and for the sum of fifty cents per bushel, as will appear by the 
annexed Bill of Particulars. And your Petitioner avers that said 
Plantation {and its appurtenances,) is liable to bis claim. And 3^our 
Petitioner avers, that said Richard Roe, Trustee as aforesaid, being so 
indebted as aforesaid, afterwards, to wit, on the first day of January 
eighteen hundred and fifty-nine, undertook and promised to pay your 
Petitioner said sum of money whenever thereunto afterwards re- 
quested ; yet your Petitioner avers, that said Richard Roe, Trustee as 
aforesaid, although often requested has not paid said sum of money, 
or an}^ part thereof, but the same to pay, hath hitherto neglected and 
refused, and does still neglect and refuse, to the damage of Petitioner 
four hundred dollars. 

Wlierefore, Petitioner brings suit and prays Process may issue, re- 
quiring said Richard Roe, Trustee as aforesaid, to be and appear at the 
next Superior Court to be held in and for said County, to answer your 
Petitioner in an action of Assumpsit, &c. 

James A. Pkingle, Atiy pro Petr. 



JUDICIARY.— JUDGE OF THE SUPERIOR COURT. 57 

Bill of Particulars, 
1859. 
Jan'y 1. Richard Roe^ Trustee of Mrs. Ann Sikes, . . D'r. 
To 400 bushels Corn, at 60 cts per. bushel, 
furnished for the use of the Plantation 
of said Mrs. Ann Sihes, in 1848. . . $200 00. 

John Doe. 

An Act to abolish the right of Survivorship in Joint-Tenants, in this 

^i2iic.— Approved Dec. 17, 1828. 

Whereas^ it is doubtful whether the Right of Survivorship, as under 
the English law, does not still exist in this State, in all Estates of Joint- 
Tenancy — 

125. Be it enacted^ That from and after the passage of this act, when survivorship 
two or more persons shall hold and possess any estate of lands, in joint- between 
tenancy, in this State, and one or more of said joint-tenants may depart Joint-Tenants 
this life, during the existence of said estate, the title or interest of the abolished, 
deceased joint-tenant, in said estate, shall not go and become the property 

of the surviving joint-tenant or tenants, as under the English law, but that 
the same shall be distributed as all other estates are, under the existing 
laws of this State. 

All laws and parts of laws, militating against this act, are hereby 
repealed. 

An Act to extend the provisions of the act to abolish the Right of Sur- 
vivorship in Joint-Tenants, in this State. — Approved Feb. 10, 1854. 

126. Be it enacted^ That the provisions of the act passed on the seven- Survivorship 
teenth of December, 1828, entitled " an act to abolish the right of sur- in personal 
vivorship in joint-tenants, in this State," be and the same is hereby extended property, 
and made applicable to personal estate held in joint-tenancy. 

JUDGE OF THE SUPERIOR COURT. 

An Act to alter the times, &c., and to amend certain parts of the act, 
entitled " an act to amend an act, entitled an act to revise and amend 
the Judiciary System of this State. " — Approved Dec. 5, 1801. _ 

127. Sec. Y. In all cases brought in the said superior courts, or either Judge inter- || 
of them, where either of the judges thereof shall be a party, or interested ested, Justices 
therein, it shall be the duty of three or more of the justices of the inferior ^^ the Inferior 
court, to preside at the trial of the same. gj^j^ 

An Act to authorize the Judges of the Superior Courts in this State to 
alternate in their districts. — Approved Dec. 8, 1806. 

128. It shall and may be lawful for the judges of the superior courts Judges may 
in this State, and they are hereby authorized, to alternate in their districts, alternate, 
from and immediately after the first day of January next. Any law to 

the contray notwithstanding. 

An Act to comj^el the Judges of the Superior Courts of this State to 
convene at the Seat of Government in this State, once in each year, for 
the purpose of establishing uniform Rules of Practice, throughout this 
State. — Approved Dec. 24, 1821. 

129. From and after the next election of judges of the superior courts Judges to es- 

of this State, that it shall be the duty of the said several judges, to con- tablishKules 

of Practice. 



58 JUDICIARY.— JUDGE OF THE SUPERIOR COURT. 

vene at the seat of government of this State, once in each year, at such 
time as they, or a majority of them, may appoint, for the purpose of 
establishing uniform rules of practice throughout the several circuits of 
this State. And it shall be the duty of the judges so convened, to notify 
And notify ab- such of the judges who may be absent, of such rules, or alterations of 
Ben Judges, j.^igg^ ^s may be established, as aforesaid. 

An Act to annul and declare inoperative, all Rules of Practice, for the 
Superior and Inferior Courts of any Judicial Circuit, which have not 
been agreed upon and assented to by a majority of all the Judges of 
the Superior Courts, in Convention, for such purposes. — Approved Dec. 
29, 1847. 

Whereas^ by a law of this State, the Judges of the Superior Courts are 

authorized to fix and establish Rules of Practice for all the Superior and 

Inferior Courts of this State, And whereas^ a practice has grown up, 

within a few years past, of some of the Circuit Judges establishing Rules, 

without the assent and concurrence of their associates in office, thereby 

producing a want of uniformity in the Practice, an evil which requires 

legislative remedy — 

. 130. Sec. I. Be it^ therefore^ enacted^ That all rules of practice for the 

^£P^^^x-Ag^ superior and inferior courts, prescribed, or which may be prescribed by 

Glared null ^^^7 Other authority than that which has, by law, been deputed to all the 

and void, judges of the superior courts of Georgia, in convention, be and the same 

are hereby declared to be null and inoperative. 

Judges to sug- 131. Sec. XXXIII. It shall be the duty of the judges of the superior 
gest correc- courts, to make a special report annually, to the governor of this State, 

tions in Penal pj,g^j^^^g *^ ^^^ meeting of the General-Assembly, and by him to be sub- 
mitted to the legislature, of all such defects, omissions or imperfections in 
this code, as experience on their several circuits may suggest. — \_See Gohb''s 
Penal Code, 197.] 

An Act to prevent \the\ Judges of the several Superior Courts in this 

State, from making certain charges, or giving their opinions, to or in 

hearing of the Jury, and to define the same as ^vyox.— Approved Feb. 

21, 1850. 

Judge must 132. Sec. I. Be it enacted.^ That from and after the passage of this act, 

notexpresshis it shall not be lawful for any, or either, of the judges of the several superior 

opinion on courts of this State, in any court, whether civil or criminal, or in equity ; 

^^ case ^ during its progress, or in his charge to the jury, to express or intimate his 

opinion, as to what has or has not been proved, or as to the guilt of the 

accused. 

Error in 1^^- ^^^' I^- Should any judge of said superior courts violate the 

Judge to vio- provisions of the first section of this act, it shall be held by the supreme 

late this act, court for correction of errors in this State, to be reversed, and a new trial 

new trial crranted in the court below, with such directions as they may lawfully 
awarded, etc. ° i ' j j j 

make. 

Sec. III. All laws and parts of laws militating against this act, be and 

the same are hereby repealed. 

An Act to provide for the Election of all the Judges of the Superior 

Courts, by the free white people of the State of Georgia, and for other 

purposes therein named. — Approved Jan. 12, 1852. 

Gen'l-Assem- ^^^' ^^^- ^' ^^ ^^ enacted.^ That from and immediately after the pas- 

bly not to ap- sage of this act, it shall not be lawful for the General-Assembly of this 

point Judges. State, or either branch thereof, by joint-ballot or otherwise, to elect or 



JUDICIARY.— JUDGE OF THE SUPERIOR COURT. 59 

appoint, the whole or any portion of the judges of the superior courts of 
said State. 

135. Sec. II. That in each judicial circuit or district in this State, an Elections 
election shall be had and held for one judge of the superior courts of said when and bow 
district or circuit, in the order following, on the day and time herein-after c<^"""cted. 
specified ; that is to say, for the Eastern, Middle, Northern, Western, 
Ocmulgee, Southern, Flint, Chattahoochee and Cherokee circuits or districts. 

Which said election for a judge of the superior courts, in and for the 

aforesaid circuits or districts, shall be had and held on the first Monday in 

October, in the year of our Lord eighteen hundred and fifty-three, and on 

the first Monday in October in every fourth year thereafter. And also, for 

the Coweta, South- Western, Macon and Blue-Ridge circuits or districts, 

there shall be had and held, in and for said circuits or districts, an election 

for a judge of the superior courts thereof, on the first Monday in October, 

in the year of our Lord one thousand eight hundred and fifty-five, and on 

the first Monday in October in every fourth year thereafter. Which said 

elections shall be opened, held, managed and conducted and closed, in the 

same manner and under the same rules and regulations, as are now or 

hereafter, may be prescribed by law for holding elections for members of 

the General- Assembly of this State. And all free white male persons, who entitled 

qualified by law to vote for members of the General- Assembly, shall be to vote. 

and they are hereby declared to be entitled and qualified to vote for one 

judge of the superior courts, in their several and respective judicial circuits 

or districts. But no one not a resident-citizen of the district or circuit for 

at least six months immediately preceding such election, shall be entitled 

to vote. And any person entitled to vote in one county may vote in any 

county, in such district. 

136. Sec. III. That the voters at said elections shall designate on Elections to 
each ticket or ballot the name of the person voted for as judge of each ^® hy ballot, 
circuit or district. And the person having the highest number of legal 

and qualified votes shall be declared, as herein-after provided, to be 
elected judge of said circuit or district: Provided^ he shall have the 
qualifications herein-after prescribed. 

137. Sec. IY. That the managers and superintendents of said elec- Returns how 
tions, at the court-house and the several election-precincts in each county consolidated, 
in said circuits or districts, or any one or more of them from each pre- ^'^• 
cinct, on the day after the election, shall meet together at the court-house 

of said county, and then and there count, compare, consolidate, add 
together, the returns to them produced by the managers or superintend- 
ents of the precinct-elections, and return and certify the same and the 
result thereof, within twenty days thereafter, to the governor of this State 
for the time being, under the same rules and regulations as are now or 
hereafter may be prescribed by law, in relation to the election of members 
of the General Assembly of this State, except as the same may be 
altered by the provisions of this act. And thereupon, it shall be the duty Duty of Gov- 
of the governor for the time being, within five days after the expiration ernor and Sec- 
of the aforesaid twenty days, together with the secretary of State, to ^^^^^^ ^^ ^*^*^ 
compare, consolidate, count up, and add together, the legal votes cast 
or polled for each candidate from each county in said circuit or district, or 
from such as may have made returns, as herein-after required. And im- Governor to 
mediately thereafter, the governor shall issue his proclamation declaring i^^"^ his Proc- 
the person having the highest number of legal votes polled in said circuit l^^^*i<^^- 
or district, and qualified as herein-after provided for, to be duly elected 
judge of the superior courts thereof; notifying and requiring said person 
so elected to appear before two or more justices of the inferior court of 



60 JUDICIARY.— JUDGE OF THE SUPERIOR COURT. 

the county in which he then resides, who are hereby authorized and 
required to administer to him, in writing, the usual oath of office, which 
said oath the clerk of the inferior court of said county shall enter and 
record on the minutes of said court, and transmit, under his hand and 
seal of office, if there be one, and if not, under his own seal, a certified 
And Commis- copy thereof, to the governor, as soon as may be ; and thereupon the 
sion. governor shall cause the usual commission to be made out, issued and 
transmitted to the person so elected judge of the superior courts as afore- 
said. 
Who qualified 138. Sec. YI. That no person shall be qualified for and eligible to the 
to be a candi- office of judge of the superior courts of this State who shall not have been 
date for elec- ^, resident citizen of this State for ten years immediately preceding his 
election, and who shall not have been a resident inhabitant of the circuit 
^ or district in which he may be elected for at least one year next before 
his election, and who shall not have arrived at the age of thirty years, 
and who shall not have been , duly admitted and licensed to plead and 
practise in the several courts of law and equity in this State (except the 
supreme court) five years, at least, prior to his election. 
Person in of- 139. Sec. VII. That each and all persons who now, or may hereafter 
fice to remain at any time, hold a commission as judge of the superior courts of this 
until the qual- State, shall continue to hold the same and perform the duties of said 
^successor ^^^ce until the expiration of the time for which he or they have been 
elected and commissioned, and until their successors shall be elected, 
qualified, and commissioned, in manner and form as herein-before provided 
Judges may ^^r : Provided^ that nothing in this act shall be so construed as to pro- 
alternate, hibit the judge of one judicial district from presiding and holding courts 
in any of the districts or circuits of this State, under such circumstances 
as have heretofore been customary and allowed by law. 
Vacancies 140. Sec. VIII. That in case of vacancies by death, resignation, or 
how filled, otherwise, the governor shall appoint until a new election is ordered and 
had, and the person elected is commissioned. 

Sec. IX. That all laws and parts of laws militating against this act, and 
the true intent and meaning thereof, be and the same are hereby repealed. 

An Act to amend an act entitled " an act to provide for the Election of all the 
Judges of the Superior Courts, by the free white people of the State of 
Georgia, and for other purposes therein named," approved January 12th, 
\%^%— Approved Feb. 18, 1854. 
5th sec. act of 141. Sec. 1. J5e it enacted, That from and after the passage of this act, 
1852 repealed, the fifth section of said act is hereby repealed, and in lieu thereof, the following 
Vacancy how shall be adopted and enacted: — That whenever a vacancy occurs, or it shall 
filled, and at g^ happen that there shall not have been any election or choice of a iudge of 
elections to ^^ superior courts, in either or all of said districts or circuits, from any cause 
be held. whatever, that then and in all such cases, it shall be the duty of the governor, 
to order a special election for a judge or judges, as the case may be, to fill 
such vacancy or vacancies ; which said special election shall be held in all 
cases, on the next succeeding day for a general election in Georgia, whether 
on the first Monday in January, or the first Monday in October next there- 
after, and at no other time : Provided^ that in all cases the governor's proc- 
lamation shall be published for at least thirty days, next preceding said 
TermofofiBce. election days. And said judge or judges when so elected, shall hold their 
offices for the full term of four years, and shall be commissioned by the 
. governor accordingly, 

oo»f«;fo^^T^'^ 142. Sec. II. That when any vacancy occurs in the office of judge of the 
cancies not to . _ ^,*;. "^.i-n tti«' 

be filled by superior court, of any of the circuits of this State, by death, resignation or 

election. 



JUDICIARY.— JUDGE OF THE SUPERIOR COURT. 61 

otherwise, and the unexpired term for which the vacancy occurred, does not 
exceed the period of twelve months, the person appointed to fill said vacancy 
bv his excellency the governor, shall hold said office for the unexpired term, 
and no election shall be ordered to fill said vacancy. 

Sec. 111. That all laws and parts of laws militating against this act, be 
and are hereby repealed. 

An Act to fix the time of holding Elections for Judges of the Superior Courts, 
Attorney-General and Solicitors-General. — Approved March 1, 1856. 

143. Sec. I. Be it enacted^ That from and after the passage of this act, Time of Elec- 
the regular elections of judges of the superior courts, attorney-general and ti;^'^ of Judges 
solicitors genera], shall be held on the first Monday in January. buperior ts. 

Sec. II. [Repeals conflicting laws.] 

An Act to regulate the publication of Rules, Writs, Bills, Orders and Pre- 
cepts of Court, relative to cases in Equity ; to fix the cost thereof, and to 
amend certain defects in the Process of Writs, and to prescribe the time of 
filing Declarations in Attachments. — Approved Dec. 20, 1838. 

144. Sec. 11. When any process or writ shall bear test in the name of any Judge dying 
judge of the superior courts of this State, >vho shall have died before the Pi'ocess not to 
issuing the same, said writ or process shall not abate therefor, but the same 

shall at any time, be amended on motion, without delay or costs. 
Sec. IY. [Repealing section.] 

An Act to enlarge the powers of the Judges of the Superior Courts of 
this State, and for other purposes. — Approved Dec. 3, 1842. 

145. Sec. I. Be it enacted^ That from and after the passage of this act, Sheriff and 
the judges of the superior court in this State shall, severally, have the Clerk may be 
power to appoint temporarily, a clerk or sheriff in any county, in which f ^^^Qp^dlv 
there may be a vacancy in either of said offices, at the time provided by 

law for the holding of the said courts. 

146. Sec. II. The sheriiF so appointed shall only hold his office during Tenure of the 
the term of the court at which he was appointed. And the Clerk so Officers thus 
appointed, by virtue of the authority aforesaid, shall hold his office during ^^^ 

the term, and for four days thereafter. 

147. Sec. LIX. [The first part of tliis section, directing the annual 
Convention of the Judges of the Superior Courts, repealed in part and re- 
enacted in 1821.] And the said judges, or any of them, shall have power ,"eiStiiatJ 
to perpetuate testimony, on such terms and in such manner as is usually Testimony, 
practiced in courts of equity. 

An Act to alter and amend the several acts now in force in relation to the 

taking of Sheriff's Bonds. — Approved Dec. 26, 1845. , , S dc '- 

148. Sec. I. From and after the passage of this act, it shall be the ^^^ court must 
duty of the judges of the superior courts of this State, at the first sitting examine Sher- 
of the superior court, in any county in this State, after a sheriff shall have iff's Bond, 
been elected and qualified for such county, to examine the official bond of ^"f^ order it 
such sheriff; and if the bond has been taken in conformity to the law% to ' 
cause the bond to be entered on the minutes of the superior court. And 

in case the bond has not been taken in conformity to law, it shall be the 
duty of the sheriff to give another bond in conformity to the law, which 
bond the judge is hereby authorized and empowered to take, and when so 
taken, shall be entered on the minutes of the superior court. 

Note. — By special enactments, the Judges of the Superior Courts of the respective 
Circuits, are required to give in special ch<arge, several Acts of the Legislature, on different 



ii 



62 JUDICIARY.— CLERKS SUPERIOR AND INFERIOR COURTS. 

subjects, for which see Cobb's Penal Code, pp. 208, 9, 10, 11 and 12, and title Education, 
of this work. In addition to the above Acts the Judges are required, "at the first term 
of the Superior Court of each County, in each year, to give the Act, relating to the Poor- 
School Fund, in special charge, to the Grand Jury " — see title Education ; and likewise, 
the Act " to provide for the Education of the Poor,'' ib. 

The Judges are also required, "at the first sitting of the Superior Court, in any County 
in this State, after a Sheriff shall have been elected and qualified for such County, to 
examine the Official Bond of such Sheriff.' ' 

CLERKS. 

Duty of 149. Sec. XXXIV. The clerks of the several courts in this State shall 
Clerks of the copy into a book of record, all the proceeding's in all civil cases in said 
Inferior G'ts courts res]3ectively ; which entry of record shall be made within forty 
days after the determination of any cause. And the said clerks shall be 
allowed the sum of ten cents for every hundred words of recording such 
proceedings, to be taxed in the bill of cost. And the said clerks shall 
also, keep regular and fair minutes of all the proceedings in any of the 
said courts, which shall be signed by the judge of the superior, or pre- 
siding justices of the inferior courts, as the case may be, j)rior to the 
adjournment from day to day. 
Must be sworn 150. Sec. XXXV. The clerks of the said superior and inferior courts, 
and give bond hereafter to be appointed, shall before they enter upon the duties of their 
an secun y. appointments and after being commissioned by the governor, take the 
following oath, before one of the judges of the superior courts, or a justice 
of the inferior court of the county — -"I do solemnly swear, or affirm, that 
Their Oath of I will truly and faithfully enter and record all the orders, decrees, judg- 
Ofifice. ments and other proceedings of the superior, or inferior, court of the 

county of ; and all other matters and things which by law ought 

by me to be recorded. And that I will faithfully and impartially discharge 
and perform all the duties required of me, to the best of my understand- 
ing." And shall also, enter into bond, with one or more good and suffi- 
cient security or securities, to the governor for the time being, in the sum 
of $3,000 ; conditioned for the faithful discharge of the duties required of 
May adminis- them. And the said clerks shall, in virtue of their offices, be justices of 
ter Oaths, the peace, so far as to administer all oaths appertaining to the business of 

their office. 

Not allowed 151. Sec. XXXVI. N^o clerk of a court, or other person employed in 

to practice his office, shall act as attorney, in his own name or the name of any other 

l^^^- person, or be allowed to plead or practice in such courts, during the time 

Same nerson shall be employed in such office. And the same person may be clerk 

Clerk of both ^^ the superior and inferior courts of the same county : Provided^ that 

Courts. nothing herein contained shall extend to prevent any officer of the court 

from prosecuting or defending any suit to which he is a party. 

Clerk^s Bond, 

STATE OF CEORCtIA, ] We, William H. Miller, as principal, and 
Houston County. ^ Samuel Felder and William H. Talion, as securi- 
ties, acknowledge ourselves held and bound to Joseph E. Broion, 
Governor of said State for the time being, and his successors in office, 
in the sum of three thousand dollars, subject to the following con- 
dition — 

The condition of the above obligation is such — whereas, the above 
bound William H. Miller, was, on the first day of January, eighteen 
hundred and fifty-nine, elected Ckrk of the Superior Court of the 



J UDICIAKY.— CLERKS SUPERIOR AND INFERIOR COURTS. 63 

County of Houston^ in said State : now should said William H. Miller^ 
well and truly do and perform, all and singular, the duties required of 
him by law,'^as Clerk as aforesaid, according to the trust reposed in 
him, then the above obligation to be void ; otherv/ise, of force. This 
January 10, 1859. 
■ Before us, 
John Ragin, J. I. C, William H. Miller, prinU. [L. S.] 

John D. Winn, J. I. G. Samuel Felder, sec'ty. [L. S.] 
Charles Anderson, J. I. C. William H. Talton, secHy. [L. S.] 

Deputy -Cleric's Bond. 

STATE OF GEORGIA, j^ AYe, Thomas Killen, as principal, and Hugh 
Houston County. j Denuarcl and Drury W. Taylor, as securities, 
acknowledge ourselves held and bound to William H. Miller, Clerk of 
the Superior Court of the County aforesaid, in the sum oi one thousand 
dollars, subject to the following condition — 

The condition of the above obligation is such — whereas, the above 
bound Thomas Killen, has this day, by Williain H, Miller, Clerk of the 
Superior Court of the County aforesaid, been appointed Deputy of 
the said William H. Miller: now, should the said Thomas Killen well 
and truly do and perform, all and singular, the duties required of him 
by law, as the Deputy-Clerk of the Superior Court of said County, 
according to the trust reposed in him, then the above obligation to be 
void ; otherwise of force. This January 10, 1859. 
Before us, 

John Regan, J. I. C. Thomas Killen, prinH, [L. S.] 

John D. Winn, J. I. C. Hugh Dennard, secHy. [L. S.] 
Charles Anderson,! , I. C. Drury W. Taylor, secHy. [L. S.] 

Note. — The form of the Bond given by the Clerk of the Inferior Court is the same as 
that given by the Clerli of the Superior Court, — mutatis mutandis. 

An Act to compel the Clerks to keep their offices at the Court-House of their 
respective Counties, or within one mile thereof. — Approved Dec. 7, 1807. 
Whereas, great inconvenience has hitherto been experienced by the 
citizens of this State from the great distance at which many of the clerks keep 
their offices from the court-house ; many records and other papers being 
frequently necessary to the fair investigation of a cause in court, that are 
lodged in the office, and their absence necessarily delaying justice, and some- 
times utterly defeating it, for remedy whereof — 

152. Sec. I. Re it enacted, That from and after the first day of June next, Clerks to 
it shall be the duty of the clerks of the superior and inferior courts, and the keep their 
clerks of the court of ordinary, to keep their offices, books and papers, at the 1^.]^^ ^^ 
court-house of their respective counties, or within one mile thereof, except the Courthouse, 
counties of Glynn, Effingham, Bryan and Bulloch ; and except the county of 
Wilkinson, until the public buildings be made permanent. 

153. Sec. II. Each and every of the said clerks, except as before excepted, Penalty for 
shall forfeit and pay the sum of $30 for every month they, or either of them, neglect, and 
shall fail to comply with the requisitions of this act, to be recovered in the^*^^ enforced, 
superior court, on motion of the attorney or solicitor-general, by attachment 

as for contempt, and to be considered as a part of the county funds. 



6i JUDICIARY.— CLERKS SUPERIOR AND INFERIOR COURTS. 

An Act to allow Clerks to appoint Deputies. — Approved Dec. 19, 1817. 

Whereas, considerable inconvenience arises to the good citizens of this 

State, in consequence of the non-appointment of deputies by the clerks of the 

superior, inferior and corporation courts, and the courts of ordinary of this 

State ; for remedy whereof — 

Clerks may 154^ J5g n enacted^ That immediately from and after the passing of this 

^^^^'res ^^^"^^^ ^^® '^^^^ clerks shall be allowed to appoint a deputy or deputies, in the 

same manner and under the same rules and regulations as deputies of sheriffs 

are now by law appointed ; who may continue in office during the term of his 

Who go out or their said principal or principals, unless specially removed : Provided 

with their aluoays^ that in case of the death, resignation or disability of the said principal 

whois respoa- ^^^^^^ ^^ clerks, the power and authority of the said deputy or deputies shall 

sible for their cease and determine. And that the said several principal clerks, shall in all 

acts. cases, be responsible for the acts of each and every of their said deputies and 

agents. — \_8ee next Act.] 

An Act to legalize the acts of Deputy-Clerks of the Superior and Inferior 

Courts and Courts of Ordinary, under the age of twenty-one years. — 

Approved Dec. 20, 1824. 

Acts of minor 155. From and immediately after the passage of this act, all the acts 

Deputies heretofore done by the deputy clerks of the superior, inferior and courts of 

ma e ega . Qi-^^jj^j^i^y^ jj^ i\^\^ State, under the age of tv/enty-one years, be and the same 

are hereby made as legal and valid as if such deputy clerks, at the date of 

Principal res- such acts, had been twenty-one years of age : Provided, that nothing herein 

ponsible for contained shall be construed to exempt the principal clerks from any liability 
£iCuS 01 juepu- ,i'i,» 1 . T 

1^ ^ their deputies may have incurred. 

An Act requiring Clerks of the Inferior Courts of the several Counties of 

this State to record Constables' Bonds ; and declaring certified copies 

thereof Testimony in certain cases. — Approved Dec. 27, 1847. 

Constable's 150. Sec. I. From and after the passage of this act, it shall be the duty 

Bonds to be ^^ ^j^^ clerks of the inferior courts of the several counties of this State, to 
recorflecl by . 

Clerk Inferior ^'ecord in a book to be kept for that purpose, all constables' bonds that may 

Court. hereafter be returned into their and each of their respective offices by the 

magistrates before whom said bonds are executed, within twenty days after 

the same are so returned. 

Certified copy 15^. Sec. II. In all causes which may hereafter be instituted in any of 

evidence, iin- |-|^Q courts of law or equity in this State, against the principal and securities, 

less denied, oq .1 a«/ ^'o 11 ? 

oath ^^ either of them, on any official bond given by any constable in this State, it 

shall be lawful for the said courts to receive as evidence of the tact of the due 

execution of such bond, a certified copy thereof, made by the proper officer, 

when [where] such bond is of file or recorded ; which copy shall be sufficient 

testimony in the cause, unless denied on oath. 

Sec. III. [Repealing section.] 

An Act to compel the Clerks of the Superior and Inferior Courts, and the 
Courts of Ordinary, of the several counties of this State, to buy a Seal of 
Office for each of said Courts. — Approved Jan. 12, 1852. 
Clerks to pro- 158. Sec. I. De it enacted, That from and after the passage of this act, 
cure Seals, jt shall be the duty of the clerks of the superior and inferior courts and courts 
of ordinary of the several, counties of this State, to buy a good and sub- 
stantial Seal of Office, where there is not one already provided, for each of said 
Treasurer offices; with the name of the county and court inscribed thereon. And said 
must pay for Seals shall be paid for by the several county treasurers, out of any funds in 
Seal. their hands belonging to the county. And receipts of said clerks for the 



JUDICIARY.— CLERKS SUPERIOR AND INFERIOR COURTS. Qo 

amount paid, shall serve as a proper voucher for said treasurers, in any settle- 
ment thereafter had with the county. 

159. Sec. II. That if any of the clerks of the superior and inferior courts Clerk neglect- 
and courts of ordinary of the several counties of this State, shall neglect or ing duty to 
refuse to buy a Seal of Office as required by the first section of this a<'.t, ^^ punished, 
within six months after the passage of this act, said clerks or ordinary so 

failing or refusing shall be guilty of a misdemeanor, and on indictment and 
conviction in the superior court, shall be fined the sum of fifty dollars, one-half 
to the prosecutor and the other to county purposes. 

An Act to legalize the acts of certain Deputy-Clerks of the Superior Courts, 

Inferior Courts, and Courts of Ordinary of this State. — Approved Jan. 

12, 1852. 

TI^Aereas, By the act of December 19th, 1817, the several clerks of the 
superior, inferior and corporation courts, and courts of ordinary of this 
State, are authorized to appoint deputies. 

And whereas., it has been decided by some of the superior courts of this 
State, that all declarations, processes and other official papers, and instru- 
ments, signed by such deputies, are illegal and of no effect, for remedy 
whereof — 

160. Sec. I. Be it enacted., That from and after the passage of this Papers exe- 
act, all writs, declarations, processes and other official instruments that ^^^^^ji,,!^^ ^^P' 
have heretofore or may hereafter, be signed by any such deputy-clerk of ^ ^' ^^^ " 
the superior, inferior or corporation court, or court of ordinary, shall be 

as legal and binding to all intents and purposes, as if the same had been 
signed by such principal clerk. Any law, usage or custom to the contrary 
notwithstanding. — \^&ee 167.] 

An Act to alter and amend the 6th sec. &c. and to prescribe the mode of 
issuing 8cire Facias in certain cases therein provided for. — Approved 
Dec. il, 1841. 

161. Sec. III. All scire facias hereafter to be issued for the purpose of How Scire Fa- 
making parties to any suit at law or equity, pending in the superior or in- <^^<^ to make 
ferior courts of this State, shall be issued by the clerk of said court ; in ^^foriJ^gY ^ 
which it shall be sufficient for said clerk to state the names of the parties, 

the term of the court to which said case was made returnable, and the 
name of the suit, or action ; requiring the party to appear and show cause 
why he should not be made party to said cause ; without setting forth the 
substance of the bill or declaration, or the proceedings had thereon, as here- 
tofore practised. 

Sec. IV. All laws and parts of laws militating against the provisions of 
this act, be and the same are hereby repealed. 

Scire Facias to make parties. 

STATE OF GEORGIA, ) To all and singular the Sheriffs of the State of 
Houston County. ) Georgia. 

JOHN DOE ) Assumpsit^ returned to the April Term, of the 

RICHARD ROE. j Superior Court of said County, 1858. 

Whereas, JohnDoe^ Plaintiff in the above case died, pending said 
action of Assumpsit^ and his death has been suggested of record. And 
whereas, Charles Smithy has been duly appointed Administrator of the 
Estate of said John Doe. Therefore, you are hereby commanded to 

5 



^Q JUDICIAEY.— <:!LEKKS SUPERIOR AND INFERIOR COURTS. 

notify said Charles Smith to be and appear at the next term of said 
Court, to be bolden on the fourth Monday in October next, to show 
cause why he should not be made party Defendant, in said action of 
Assumpsit, and said action procee(b 

Witness, the honorable Henry G. Lamar ^ Judge of said Court, this 
May 1, 1859. 

William H. Miller, Clerh. 

Ax Act to define the duties of the Clerks of the Superior and Inferior 
Courts of this State, and Sheriffs. — Approved Dec. 1.5, 1810. 
Whereas^ a practice has prevailed in the superior and inferior courts of 
this State, for judgments to be kept open, notwithstanding the sheriff may 
have returned the execution or executions bottomed on such judgments 
satisfied. And lohereas^ great evil might groAV out of such practice ; for 
remedy whereof — 
Satisfaction to 162. Sec. I. Se it enacted^ That from and after the first day of Feb- 
be entered on mary next, it shall be the duty of such clerks, immediately after the return 
u gment. ^^ such sheriff of such execution or executions, as the case may be, to 
enter such satisfaction on such judgment, either in whole or in part, as per 
sheriff's retui-n. 
Satisfaction 163. Sec. II. It shall be the duty of such clerks to keep a docket-book 
Docket must ^^^ the special purpose of entering the names and stating the cases of 
Clerk ^^ parties, plaintiff or plaintiffs and defendant or defendants, and enter such 
satisfaction as aforesaid. 
Subpoena 164. Sec. III. The respective clerks of the superior and inferior courts 

Docket must of this State, shall keep regular subpoena-dockets. And the said clerks of 
^ *^^ ' the superior courts shall also keep separate dockets for all criminal cases, 
which shall be entered in their regular order. 
Sheriffs must 165. Sec. IY. The different sheriffs in this State, shall keep fair and 
keepExecu- regular execution-dockets, wherein they shall enter all executions delivered 
tion Docket. ^^ them, and the dates of such delivery, together with all their actings and 
doings thereon, and file the same in the clerk's office out of which such 
executions may have issued, on or before the first day of the meeting ot 
the court to which they may be made returnable. Which said dockets 
shall remain in the said offices, subject to the inspection of all persons con- 
cerned therein. 
Security pay- 166. Sec. V. Where it shall appear by the sheriff's return on any exe- 
ing of fi. fa. to cution or executions, that the same has been paid by a security or securi- 
have control ^igg^ j^ shall be the duty of the clerk to make such entry in such docket- 
^ ^ ■ book, and such security or securities shall have the use and control of said 
execution for the purpose of remunerating him or themselves out of the 
principal for whom he or they stood security. 

Aisr Act to legalize and make valid any Process heretofore signed by Dep- 
uty-Clerks, or which may hereafter be signed by them. — Approved 
Jan. 22, 1852. 
Process signed 167. Sec. I. JSe it e?iacted, That all processes which may have hitherto 
by Deputy- issued, or may hereafter issue from the superior and inferior courts of this 
er va 1 . g^rj^^g^ signed by the deputy-clerk, either in his own name or that of the 
clerk, shall not be dismissed, but the said process shall be as sufficient in 
law as though the same had been signed by the clerk himself. Any law 
to the contrary notwithstanding. 



JUDICIAEY.— SHERIFF AND DEPUTY. 67 

SHERIFF AND DEPUTY. 

168. Sec. XLVI. The sheriffs of the several counties shall attend the^^^^^^^^'^*5^ 
superior and inferior courts in the respective counties when sitting, and by 
themselves or deputies, execute throughout the counties all writs, warrants, 

precepts and processes, directed to them, issued under the authority of any 
judge or justice of the said superior or inferior courts, or the clerk of either 
of the courts. And the said sheriffs or their deputies, shall have power to May corn- 
command all necessary assistance, in the execution of their duty; and to ^^^ posse. 
appoint, as there shall be occasion, one or more deputies. And before ^"7 Bond^aiS^Se- 
sheriff shall enter upon the duty of his appointment, and being commissioned curity. 
by the governor, he shall be bound for the faithful performance of his duty, 
by himself and his deputies, before any one of the said judges, to the Gover- 
nor of the State for the time being, and to his successors in office, jointly 
and severally, with two good and sufficient securities, inhabitants and free- 
holders of the county, to be approved of by the justices of the inferior court, 
or any three of them, in the sum of $20,000 ; and the said bond shall remain 
in the office of the clerk of the superior court of such county, and may be 
sued for by order of the said court, [see 201,] for the satisfaction of the public, 
or persons aggrieved by the misconduct of the sheriff or his deputy. And the Oath of Office, 
said sheriff shall take and subscribe the following oath, before one of the 
judges of the superior or justices of the inferior courts, and the same shall be 
entered on the minutes of the said court, before such sheriff shall enter on the 
duties of his office, to wit: "I do solemnly swear (or affirm, as the case 
may be,) that I will faithfully execute all writs, warrants, precepts and pro- 
cesses, directed to me as sheriff of the county of , and true 
returns make; and in all things well and truly, and without malice or par- 
tiality, perform the duties of the office of sheriff of , during 
my continuance in office, and take only my lawful fees — so help me God." 
And an oath to the same purport shall be taken by each of the deputies of the Deputy must 
said sheriff, in like manner. ^^^^ Oath. 

169. Sec. XLVII. In case of the death of either of the said sheriffs, the Where Sheriff 
deputy or deputies shall continue in office, unless otherwise special!/ removed, ^^^acts^" ^ 
and execute the same in the name of the deceased, until another sheriff be 
appointed and qualified ; and the defaults and misfeasance in office of such 

deputy or deputies, in the meantime, as well before as after the death of such 
sheriff, shall be adjudged a breach of the condition of the bond given as be- 
fore directed, by the sheriff who appointed such deputy or deputies. And Ex'ror Adm'r 
the executor or administrator of the deceased sheriff shall have the like remedy ^^ ^^^- ^l^^nff 
for the misconduct, or misfeasance, or default in office, of such deputy or^^^ agai^nst* 
deputies, during such intervals, as he would be entitled to if the sheriff had Deputy, 
continued in life, and in the execution of his office, until his successor was 
appointed and sworn. 

110. Sec. XLVIII. The sheriff of each county shall, at the expiration of Sheriff must 
his appointment, turn over to the succeeding sheriffs by indenture and schedule, ^}^^ over to 
all such writs and processes as shall remain in his hands unexecuted, who shall ^U o^c^e-^^ 
duly execute and return the same. And in case any sheriff shall neglect or Papers and 
refuse to turn over such process, in manner aforesaid, every such sheriff so unfinished 
neglecting or refusing, shall be liable to make such satisfaction, by damages business; 
and costs, to the party aggrieved, as he, she, or they shall sustain by reason successor 
of such neglect or refusal. And every sheriff, at the expiration of such his the same, 
appointment, shall also deliver up to his successor, the custody of the jail and Jail and 
the bodies of such persons as shall be confined therein, with the precepts, writs, Prisoners 
or causes of such detention. And such succeding sheriff shall be empowered , ™"^ 
and required to sell and carry into effect any levy made by his predecessor 



68 JUDICIARY.— SHERIFF AND DEPUTY. 

Incoming 
fi h^th"b"^' '"^ office, in like manner as such sheriff could have done, had he continued 
nessofhis therein; and shall make titles to the purchasers for all the property sold 
predecessor, under execution and not conveyed by his predecessor. 

Sheriflf's pow- 171. Sec. XLIX. The sheriffs of the several counties in this State, shall 
^^hM^r have like powers and authorities, and they and their under-sheriffs and jailors, 

constables and other officers belonging to the court, be liable to all actions, 
suits, penalties and disabilities whatsoever, which they or either of them may 
incur, for or on account of the escape of prisoners, or for or in respect of any 
other matter or thing whatsoever, relating to or concerning their respective 
offices, in the same manner as they have heretofore been liable by laws in force 
Shall not in this State. And no sheriffs, under sheriffs, deputy or other sheriff's officer, shall 
Practice Law. act as an attorney-at-law, in his own name or in the name of any other person, 
or be allowed to plead or practice in any of the courts of this State, during 
the time he is in such office. 
Subject to At- 172. Sec. L. The sheriff shall be liable either to an action on the case, or 
tachment or ^^^ attachment for contempt of court, at the option of the party, wherever it 
Case for fail- *^^^' appear that he hath injured such party, either by false returns or by neg- 
ure to perform lecting to arrest the defendant, or to levy on his property, or to pay over to 
his duty, the plaintiff or his attorney, the amount of any sales which shall be made 
under or by virtue of any execution, or any moneys collected by virtue 
thereof 
Liability for 173. Sec. LI. If any sheriff or his deputy or under-sheriffs shall be guilty 
mal-practice of extortion or other mal-practice in the execution of his office, upon com- 
m o ce. plaint made on oath to the State's attorney or solicitor, it shall be the duty 
of such attorney or solicitor to exhibit a bill of indictment against the person 
so offending, who upon conviction thereof, shall be fined by the court in treble 
the amount which he may have extorted from any person ; which shall be ap- 
^ plied, one moiety to the injured person and the other moiety to the use of such 
county, and shall likewise be removed from office, and suffer such other pun- 
ishments as the law directs. 
Liability in 174. Sec. LII. Whenever the sheriff of any county within this State 
certam cases, shall fail to make proper return of all writs, executions and other process put 
into his hands ; or shall fail or neglect to pay up all moneys received on such 
executions on his being required by the court so to do, he shall be liable to an 
action as for contempt, and may be fined, imprisoned or removed from office, 
in the manner prescribed by the constitution. 

Sheriffs Bond, 

STATE OF GEORGIA, i We, Madison Marshall, as principal, and William 
Houston County. ^ ff^ Tcilton and Hugh Dennard, as securities, all of 
said State and Countjj acknowledge ourselves held and bound to his 
Excellency Joseph E. Brown, Governor of said State, for the time 
being, and his successors in office, in the sunn of twenty thousand 
dollars, subject to the following conditions — 

The conditions of the above oblis^ation are as follows — whereas, said 
Madison Marshall has been elected Sheriff of said County: now, should 
the said Madison Marshall well and truly do and perform his duties as 
Sheriff of said County, by himself, Jailer and Deputy. And faithfully 
execute all Writs, Warrants, Precepts and Processes directed to him, 
as Sheriff, as aforesaid, for and during his terra of office, and true 
returns make. And in all things, well and truly, without malice or 
partiality, perform the duties of said Office of Sheriff, by himself, 



JUDICIARY.— SHERIFF AND DEPUTY. 69 

Jailer and Deputy, during his term of Office, and take only tbe fees 
prescribed and allowed by law. And faithfully perform, all and 
singular, the duties required of him as Sheriff as aforesaid, then the 
above obligation to be void ; otherwise of force. This January 10, 
1859. 

Approved — 
John H. Ragin^ J. 1. C. Madison Marshall, prin'L [L. S.] 
John D. Winn, J. I. G. William H. Talton, sec'ty. [L. S.] 

Charles Anderson, J. I. C. Hugh Dennard, secHy. [L. S.] 

Deputy-Sheriff ^ s Bond. 

STATE OF GEORGIA, ) "VVe, Marcus Kunze, as principal, and William 
Houston County, j" jj^ Miller and John S. Johson, as securities, ac- 
knowledge ourselves held and bound to Madison Marshall^ Sheriff of 
said County, in the sum of ten thousand dollars, subject to the follow- 
ing conditions — 

The conditions of the above obligation are as follows — Whereas, 
said Marcus Kunze has this day, by Madison Marshall, Sheriff of said 
County, been appointed Deputy to him, the said Sheriff: now, should 
said Marcus Kunze well and truly do and perform faithfully his duties 
as Deputy Sheriff of said County. And faithfully execute all Writs, 
Warrants, Precepts and Processes, directed to the Sheriff of said 
County, and which may come into his hands, for and during the time 
of his continuance in Ofiice, and true returns make. And in all 
things well and truly, without malice or partiality, perform the duties 
required of him as Deputy-Sheriff, as aforesaid, and take only the 
fees prescribed and allowed by law. And faithfully perform, all and 
singular, the duties required of him as Deputy Sheriff, as aforesaid, 
then the above obligation to be void ; otherwise, of force. This Jan- 
uary 10, 1859. 

Approved — Marcus Kunze, print. [L. S.] 

James Mactc, J. P. W. H. Miller, secHy. [L. S.] 

J. S. JoBsoN, secHy. [L. S.] 

Deputy- Sheriff^ s Oath. 

STATE OF GEORGIA, \ J, Marcus Kunze, Deputy-Sheriff of said 
Houston Qomiiy. | County, do solemnly swear that I will faithfully 
execute all Writs, Warrants, Precepts and Processes which may come 
into my hands, directed to the Sheriff of said County, and true returns 
make; and in all things well and truly, and without malice or par- 
tiality, perform the duties of Deputy-Sheriff of said County, during 
my continuance in OflSce ; and take only my lawful fees— so help me 
God. 

Sworn to and subscribed, ) MaRCUS KuNZE. 

before me, this January 10, 1859. > 
James Mack, J. P. ) 

Note. — By the Act of Dec. 11, 1841, Deputy-Sheriffs may be ruled in the same way 
that Sheriffs may be ruled ; but this does not relieve the Sheriff from responsibility. 

The same Act provides that when the Sheriff, or his Deputy, is a party to a Rule, or 
interested therein, and there be no Coroner, or other lawful officer of said County to 
execute the same, it shall be the duty of the Court to appoint, pro tempore f a special 
officer, for the purposes of executing the Rule, etc. 



70 JUDICIARY.— SHERIFF AND DEPUTY. 

An Act to regulate the appointment of Jailers, and to alter and explain 

another ^^oXi.— Approved Dec. 16, 1811. 

Bond and Yi^, Sec. I. In future all sheriffs, on appointing a keeper of the jail, to 

be given \sliall\ require sufficient security of him or them. And such person 

by Jailer, appointed, shall before he enters on the duties of his or their office, take 

and subscribe the following oath, before some one of the justices of the 

Jailer's Oath inferior court of said county, to wit : "I, A B, do solemnly swear, (or 

of Office, affirm, as the case may be,) that I will well and truly do and perform, all 

and singular, the duties of jailer for the county of — . And that I 

will humanely treat all criminals who may be brought to jail, of which I 
am the keeper ; and not suffer them to escape by any negligence or inat- 
tention of mine — so help me God." ^ 

Jailer^s Bond. 

STATE OF GEOKGIA, ) We, John Doe^ as principal, and Richard Roe^ 
Houston Gonntj. j ^nd Charles Smith, as securities, acknowledge 
ourselves held and bound to Madison Marshall, Sheriff of said County, 
in the sum of ten thousand dollars, subject to the following conditions — 
The conditions of the above obligation are as follows — whereas, 
the above-named John Do^^ has this day, by the Sheriff aforesaid, been 
appointed Jailer of said County: now, should said John Doe^ well and 
truly, do and perform, all and singular the duties required of him as 
Jailer of the County aforesaid; and humanely treat and securely keep, 
all Criminals and other persons, brought to the Jail of said County, 
by lawful warrant and authority, and not suffer them to escape by 
negligence or inattention, then the above obligation to be void ; other- 
wise, of force. This January 10, 1869. 

Approved — John Doe, principal, [L. S.] 

James Mach, J. P. Eichard Eoe, security, [L. S.] 

Charles Smith, security. [L. S.] 

A:n' Act to alter and amend the ninth section of the Judiciary Act of 
1799, and the first section of an act relative to Executions, passed Dec. 
14, l^ll. ~App>roved Dec. 22, 1840. 
Additional 176. Sec. IV. When said process or execution shall be served or levied 
Fees allowed, "by a sheriff out of his own county, that the sheriff, so sei'ving and return- 
ing the same, shall receive in addition to the fees established by law, for 
such service or levy, the sum of two dollars. 

Sec V. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to make valid the Bonds taken by the Sheriffs of this State, and 
their Deputies, Coroners and Constables, from Defendants in Execution, 
for the delivery of property levied on by them. — Approved Dec. 21, 
1829. 

Bo^?^d°°^la° ^^^'' ^^"^^^^ ^^^ ^^^^^* ^^^ passing of this act, all bonds taken by the sheriffs 
edle^al. p^ this State or their deputies, or coroners, or constables, from defendants 
in execution, for the delivery of property (on the day of sale, or at any 
other time,) which they may have levied on by virtue of any^. fa. or 
other legal process, from any court, be and the same are hereby declared to 
be good and vahd in law, and recoverable in any court in this State hav- 
ing jurisdiction thereof. — [/See 199.] 



JUDICIARY.— SHERIFF AND DEPUTY. 71 

178. Sec. II. The bonds taken in conformity with the first section of Forthcominj? 
this act, shall in no case prejudice or affect the rights of plaintiffs in exe- Bonds do not 
cution, but shall relate to and have effect alone between the sheriffs, their ^.^^'ct the 
deputies, the coroners and the constables, and defendants by whom plaintiffs 
given. And the sheriff shall in [no] case excuse himself for not having 

made the money on any execution by having taken such bond, but shall 
be liable to be ruled as now prescribed by law. 

An" Act to prohibit Sheriffs and their Deputies from becoming directly 
or indirectly, Purchasers of property at their own sales ; to vacate all 
Titles taken or held by them, for property so purchased, and to make 
penal the violation of this act; and to regulate their charges in certain 
cases. — Approved Feb. 22, 1850. 

179. Sec. 1. £e it enacted^ That from and after the passage of this Sheriff and his 
act, no sheriff or deputy-sheriff shall be permitted to purchase any property ^ep^^^y not to 
whatever, sold by himself; nor any sheriff, property sold by his deputy ; P]{^"<^P^^^ ^*' 
nor any deputy-sheriff, property sold by his principal, or other deputy of sales. 
said principal; either directly upon his own bid, or indirectly, upon tlie 

bid of any other person. And that every deed, and all deeds, intended to Deeds de- 
vest in any sheriff or deputy, a title to property purchased at such sales in claved null 
violation of this act, whether made by such sheriff or deputy, or by any ^'^'^^" 

purchaser at such sale, shall be null and void. 

180. Sec. II. Any sheriff or deputy-sheriff who shall violate the pro- Guilty of 
visions of the first section of this act, shall be liable to be indicted as for misdemeanor 
a misdemeanor, and upon conviction shall be subject to fine, in the discre- ^"^ ^^^ ^^ 
tion of the court, or imprisonment in the common jail of the county for a P^^^^^^^^^- 
term not exceeding six months, or both. 

181. Sec. III. Whenever a sheriff or his deputy shall levy upon any Slave levied 
negro property, he shall not be allowed to charge in any case, for feeding on by sheriff, 
and keeping, or any other necessaries, furnished such negro or negroes, in and employed 
such cases where the services of such nea^ro so levied on, have been 'applied ;7„ „l!fLtfo.'r 
to the use oi said sneriii or his deputy, prior to the sale and pending the for. 
levy. 

Sec. IV. All laws or parts of laws militating against this act, are here- 
by repealed. 

An Act to authorize Sheriffs to perform the duties of their Office, in ad- 
joining Counties, in certain cases herein defined. — Approved Dec. 7, 
1812. 

182. In all cases which require the official acts of a sheriff, wherein he sheriff inter- 
is or may be a party in the case, and no coroner can be obtained in the ested and no 
county, to perform and execute the office of sheriff, that then and in that coroner, sher- 
case, it shall and may be lawful for any sheriff in an adjoining county, to .^^ adjoin- 
do and perform all manner of official acts that a coroner is authorized to jjj^y ^^.^^ 
do and perform in cases where the sheriff is a party interested. 

An Act reqmring Judges to grant Rules Absolute against Sheriffs, in cer- 
tain cases. — Approved Dec. 11, 1841. 
'Whereas., Sheriffs in this State frequently absent themselves from their 

courts for the purpose of preventing rules being taken against them, for 

failure to raise moneys on executions. And whereas, injury frequently 

accrues to plaintiffs in execution ; for remedy whereof — 

183. Sec. I. Be it enacted., That whenever a sheriff of any county in Absenting 
this State, absents himself from his court, that the presiding judge or sheriff may be 
judges, in all such instances, when required by plaintiffs in executions, or ruled. 



72 JUDICIARY.— SHERIFF AND DEPUTY. 

their attorney, shall grant rules absolute against said sheriff, unless it is 
proven at said term of the court, that the sheriff from sickness, is not able 
to attend said court. Any law or custom, to the contrary {notwith- 
standing^ 

Aisr Act to relieve Criminals and other persons confined in the Jails of this 
State. — Approved Dec. 19, 1818. 

WJiereas^ criminals and other persons confined in the jails of this State, 

are exposed to unnecessary hardship and sufferance, from the want of 

medical aid, when sick ; from the want of fire in cold weather, and from 

the want of clothes and blankets, and other comforts necessary to health ; 

for remedy whereof — 

Sheriff must 484. Sec. I. Be it enacted^ That it shall be the duty of the sheriffs of 

furnish Pris- Q^idh county, whenever a criminal or criminals, or other person or persons, 

medicaT aid ^^^ confined in the jail of the county of which he is sheriff, to furnish or 

and other nee- P^<^<^^^i'6 ^^<^^ical aid whenever the sickness of the person or persons con- 

essaries. fined in jail, require said aid. It shall also be the duty of the sheriff to 

Fire. furnish such person or persons so confined, with fire, whenever the form 

of the jail admits of the same and the coldness of the weather makes fire 

Blankets, necessary to comfort and health. It shall also be the duty of the sheriff 

to furnish such person so confined, with a sufficient quantity of blankets 

and clothing, for the health and comfort of persons so confined : Provided^ 

the person or persons so confined, have not the power of procuring blankets 

Jail must be ^^^ clothing themselves. It shall also, be the duty of the sheriff to keep 

kept clean, the jail of the county of which he is sheriff, in that state of cleanliness 

Saving as to necessary to health : Provided^ nothing contained in this act, shall be con- 

Ch th sidered as arresting or taking from the corporation of the city of Savan- 

County. ^^^y the right and control over the jail of the county of Chatham, now 

exercised by them under a special act of this State. 

Sheriff neg- 185. Sec. II. If any sheriff should by negligence, permit any criminal 

lecting his du- or criminals, or other person or persons, confined in the jail of the county 

ty, to be fined. ()f which he is sheriff, to suffer in health for want of such medical aid, fire, 

blankets, clothes and cleanliness, as above pointed out, he shall be subject 

to indictment for such neglect, and upon conviction, shall be fined by the 

court, in a sum not more than five hundred dollars, which fine shall be paid 

to the clerk of the inferior court of the county, and made part of the 

county funds. 

Jailers' fees 186. Sec. III. The jailers of the several counties of this State, shall 

raised fifty per 13 g allowed to charge the sum of fifty per cent, on all charges heretofore 

^^^ ' allowed by law. 

Inferior Court 187. Sec. IV. "Whenever the sheriff of any county shall have incurred 

must pay any expense in the performance of his duty as above prescribed, he shall 

charges, j^y before the inferior court of the county of which he is sheriff, an account 

of the same; who shall pay the same out of any funds belonging to said 

county, in preference of all other claims upon said fund whatsoever. 

An Act to compel Sheriffs and Coroners to deliver possession of Real Estate, 

sold by them under Executions, to the Purchaser, his or her agent, or 

attorney. — Approved Dec. 23, 1823. 

Sheriff and 188. When any sheriff or coroner shall sell any real estate by virtue of 

Coroner must and under the authority of any execution, it shall be the duty of such sheriff 

er^f RealEs-^'' coroner, as the case may be, upon application, to put the purchaser, .his or 

tatein poa- ^^^ agent, or attorney, in possession of the real estate sold : Provided, that 

session. this act shall not authorize the officer making the sale to turn out any other 

person than the defendant in execution, his heirs or their tenants ; if such other 



JUDICIARY.— SHERIFF AND DEPUTY. 73 

person were in possession at the term [time] of the rendition of the judg- 
ment ; or if such person has acquired such possession under the judgment of 
a court of competent jurisdiction, or claim under the person or persons ac- 
quiring such right, by the judgment of such court. 

An Act pointing out the duty of Sheriffs, in selh'ng Lands under Execution. 
— Approved Dec. 22, 1808. 

189. Sec. I. It shall hereafter be the duty of the sheriffs of the several ^elevirs on 
counties in this State, when they levy any execution on land, to leave a writ- ^^nd must 
ten notice of the said levy with the owner, if in the county, or tenant in pos- give wiitteii 
session, if any ; or transmit the same to him, her or them, in five days after* notice, 
such levy. 

190. Sec. II. It shall not hereafter be lawful for any sheriff within ^^'s ^^her^ff n^ot^to 
State, to levy upon or sell any land which lies out of the county of which h® of his County, 
is sheriff. Any thing in any law, to the contrary notwithstanding. — [JSee 193. j 



^ 



Sherif-s Notice of Levy. 

STATE OF GEOKGIA, \ To Richard Roe.— You are hereby notified 
Houston County. \ and informed, that I have, this day levied an Ex- 
ecution, issued from the Superior Court of said County, in favor of 
John Doe against yourself, on lot of land number forty-nine^ in the 
tenth district of said County, as your property. Said land will be 
advertised for sale on the first Tuesday in July next. This May 1, 
1859. 

Madison Marshall, Sheriff. 

An Act to alter and explain the first section of the Act of December 22, 1808. 
— Approved Dec. 16, 1811. 

191. Sec. II. The first section of the before-recited act shall not be so Writs of Pos- 
construed as to authorize any judge of the superior courts to order writs of session not to 
possession to issue against a third person, residing within the limits of any ^^f^^ against 
such survey or tract of land so offered for sale: Provided also, that such strangers to' 
person shall not be known in the suit on which such execution is founded, nor the suit, 
have been put in possession by or claimed under or by virtue of any convey- 
ance from the defendant in .such suit. 

An Act to prevent Sheriffs and other officers from levying on and selling 
Growing Crops, except in certain cases. — Approved Dec. 29, 1836. 

192. Sec I. From and immediately after the passage of this act, no Growing 
sheriff or other officer, shall hereafter levy on any growing crop of corn, wheat, Crop not to be 
eats, rye, potatoes, cotton, rice or any other crop usualW raised or cultivated ^^g^j^ ^ ^ 
by the planters or farmers of this State; nor sell the same until the said crop 

or crops shall become matured or fit to be gathered : Provided, this act May be sold 
shall not prevent any of said officers from levying on and selling crops, as with the land, 
heretofore practised, when the debtor or debtors shall abscond or remove ®^ ^t^^^^^ 
from the State or county ; nor from selling growing crops with land. 

Sec. II. All laws and parts of laws militating against this act, be and the 
same are hereby repealed. 

An Act to enable Sheriffs or Coroners to sell tracts of land divided by a 
County-line. — Approved Dec. 25, 1847. 

193. Sec. I. Re it enacted. That from and after the passage of this act. Land divided 



74 JUDICIARY.— SHERIFF AND DEPUTY. 

by County- where judgment shall be obtained against any debtor owning a tract or tracts 
line may be of land, divided by a county-line or county-lines, it shall and may be lawful 
sold. ^Qj. ^j^g sheriff or coroner of the county to levy on and sell the whole of said 
tract or tracts of land, notwithstanding part of said tract or tracts of land may 
lie in counties of which he is not sheriff or coroner. 
Lands owned 194. Sec. II. Where any judgment-debtor shall own any tract or tracts 
by Debtor in of land, divided by a county-line or county-lines, and no part of such lands 
t^L^divWed ^^^^^^ ^^® ^^ *^® county [of his residence^'] it shall and may be lawful for the 
by ' County- sheriff or coroner of either county in which part of said tract or tracts of 
lines, may belaud may lie, to levy on and sell the whole of said tract or tracts of land, 
sold. Sec. III. All laws and parts of laws militating against this act, be and 

the same are hereby repealed. 

An Act to alter and amend an act passed 22d Dec, 1840, entitled " an 

act to alter and amend the 9th section of the Judiciary act of 1799, and 

the first section of an act relative to Executions, passed Dec. 14, 1811." 

And to provide for the enforcement of Judgment against land sold and 

Bond for Titles given. — Approved Dec. 29, 1847. 

Executions, 195. Sec. 1. JBe it enacted, Thsit the second section of the act, of wdiich 

etc., against this is amendatory, be amended so as to read as follows; "Sec. 2. And be 

^^f'^h ^^ff°^ '^^ further enacted, That all executions, orders, decrees, attachments for 

how directed ^oi^tempt, and all final process hereafter issued by the clerks of the supe- 

served and re- I'ior and inferior courts, in favor of or against any sheriff of this State, shall 

turned. be directed to the coroner of the county in which said sheriff" may reside, 

and to all and singular the sheriffs of the State, except the sheriff of the 

count}^ in which the interested sheriff may reside, which may be levied, 

served and returned by the said coroner or other sheriff, at the option of 

the plaintiff or party seeking to have the action of said officer or officers." 

196. Sec. II. The third section of the act of which this is amendatory, 

shall be so amended as hereafter to read and be as follows : " Sec. III. 

Sale of proper- ^w(i^ he it further enacted. That when a sheriff shall levy on property by 

ty where virtue of any execution, directed and required by the second section of 

made. ^^^^ ^^^^ as herein-before amended, said property shall be sold in the county 

Defendant ^^ which the levy may be made. And that whenever any decree, order, 

where Im- ca. sa. attachment for contempt or final process, directed as required by 

prisoned un- the second section of this act, as now amended, shall be placed in the 

der final pro-}j^jj(jg ^f jjj^y sheriff, and under and by virtue of said process, it shall be- 

come the duty, under the law^s of this State, of said sheriff, to imprison any 

defendant or other delinquent, it shall be lawful for said sheriff to arrest 

the delinquent wherever found ; and it shall be his duty to imprison him 

or her, either in the county where the arrest was made, or in the county 

where the arresting sheriff may reside, at the option of the plaintiff or 

other person so requiring the services of said sheriff. 

Sale of land 197. Sec. III. When any judgment has been or shall be rendered, in 

where Bond any of the courts of this State, upon any note or other evidence of debt, 

for Titles given for the purchase of land, where titles have not been made, but bond 

given. j.^^. titles given, it shall and may be lawful for the obligor in said bond, to 

make and file, and have recorded in the clerk's office of the superior court 

of the county, a good and sufficient deed of conveyance to the defendant 

for said land, and thereupon the same may be levied on and sold under 

Lien. said judgment, as in other cases: Provided, that the said judgment shall 

take lien upon the land prior to any other judgment or incumbrance 

against the defendant. 

An Act for the relief of Sheriffs in certain cases. — Approved Dec. 22, 1829. 
Whereas, it is frequently oppressive upon sheriffs to serve and return 



JUDICIARY.— SHERIFF AND DEPUTY. 75 

all writs and processes within the time prescribed by law ; for remedy- 
whereof — 

198. Be it e7iacted^ That from and immediately after the passing of Writs, etc.,, to 
this act, it shall not be necessary, as heretofore, for the sheriff^s of this be served 17 
State, to serve all writs and processes at common law twenty days before ^^^ beiore 
the sitting of the (K)nrt to which the same may be made returnable, but 

the same may be served and returned seventeen days before the sitting of 
the court: JProvidecl 7ievertheless, that all writs and processes shall be Must be cop- 
copied and issued, as heretofore, twenty days before the sitting of the ^ed 20 days 
court to which the same may be made returnable. Any law, usage or "^^^^^ Court, 
custom to the contrary notwithstanding. — [See 206.] 

Ait Act to compel Coroners, Sheriffs and Constables to receive Securities 
on certain occasions therein expressed. — Approved Dec. 16, 1811. 

199. Sec. I. In all cases where a levy is made on property which is Forthcoming 
claimed by a third person, and good and sufficient security is tendered by ^^nd in Claim 
the party claiming the same, it shall be the duty of such sheriff, constable cases. 

or coroner, to take security for treble the amount of the debt on which 
such execution is founded, for delivery of the property so levied on, at the 
time of sale, provided the property so levied on should be found subject 
to such execution. Then and in that case it shall be the duty of the sher- Property left 
iff, coroner or constable, to leave the same in the possession of such claim- with Claim- 
ant ; and in case the said claimant or security shall fail to deliver the ^^^• 
property at the time and place of sale, agreeably to such bond, it shall be Bond to be 
the duty of the officer takino- the same, to transfer such bond to the plain- transferred to 
tiff in execution ; ^and said bond shall be recoverable in any court of law -t^^^i^""- 
or equity in this State, having cognizance thereof 

An Act to fix the Fees of Sheriffs, Constables and Coroners in certain 
cases therein specified, and to provide for taxing the same. — Ajoproved 
Jan. 7, 1852. 

200. Sec. I. Be it enacted., That from and after the passage of this Additional 
act, in all cases where the plaintiff or plaintiffs in attachment shall require , .'^ 

any sheriff, or other levying officer of this State, to follow with any attach- ^erty 
ment any pi-operty which may be run out of the county in which such 
attachment may issue, such sheriff, or other levying officer, shall be allowed 
for such service the sum of five cents per mile in going and returning, to 
be taxed and paid as other costs, now provided by law. 

Sec. II. That all laws and parts of laws militating against this act, be 
and the same are hereby repealed. 

An Act to alter, change and amend the forty-sixth section of an act to 
amend an act entitled an act to revise and amend the Judiciary system 
of this State, approved February 16th, 1799, so far as to dispense with 
an order of Court, before bringing suits on Sheriffs Bonds. — Approved 
Feb. 7, 1854. 

201. Sec. I. Be it enacted^ That from and after the passage of this Suit on Sher- 
act, the forty-sixth section of an act to amend an act, entitled an act to i^'s Bonds 
revise and amend the judiciary system of this State, approved February "^^^^l^^Ji* ^^ 
the 16th, 1799, be and the same is hereby altered, changed and amended, 

so far as to dispense with an order of court before bringing suits on 
sheriff's bonds, and that hereafter such order of court shall in no case be 
required. 



76 JUDICIAEY.— SHEKIFF AND DEPUTY. 

An Act to alter and amend the thirty-third section of an act, entitled 
" An act to revise and amend the Judiciary System of this State," 
passed 16th February, 1799, so far as relates to the hours of Sheriff's 
and Constable's Sales. — Approved Dec. 21, 1821. 

Whereas^ the hours of sheriffs' and constables' sales are thought to be 
too short, and attended with great inconvenience tf) the sheriffs and 
constables, and frequently to the injury of parties concerned ; for remedy 
whereof — 
Hours of sale. 202. Be it enacted^ That from and after the passing of this act, the 
hours of sheriffs' and constables' sales will be from ten o'clock in the fore- 
noon until four o'clock in the afternoon. All laws and parts of laws militat- 
ing against this act, be and the same are hereby repealed. 

An Act to define and point out the mode of service of Writs of Scire 

Facias. — Approved Jan. 22, 1852. 

Sci fa how ^^^- ^^^' ^' -^^ ^^ enacted.^ That all writs of scire facias shall be 

directed and directed "To all and singular, the Sheriffs of the State of Georgia." And 

served. copies thereof issued by the clerk of the court in which said scire facias is 

pending, may be served by the sheriff of the county in which the party to 

be notified may reside, and the original returned to the office of said clerk. 

And that an original and copy or copies may issue for each county in 

which any party to be notified may reside. 

Sec. II. That all laws and parts of laws militating against this act, be 
and the same are hereby repealed. 

An Act to prevent Sheriffs from holding the office of Constable. — 
Approved Feb. 21, 1850. 
Sheriff not to 204. Sec. I. Be it enacted., That from and immediately after the 
act as Consta- passage of this act, no city or county-sheriff shall be allowed to hold the 
office of constable. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to amend the Judicial Act. — Approved May 11, 1803. 

Whereas^ doubts have arisen respecting the proper persons authorized, 

or intended by law, to take the bonds or obligations of the Sheriffs of this 

State ; for remedy whereof — 

Who author- 205. Sec. I. Be it enacted., That every judge of the superior, or a 

ized to take majority of the justices of the inferior courts, of the respective counties 

Sheriffs throughout this State, is and are, and by intendment of law, ought to have 

Bonds, etc. -j^^^^ taken, held, deemed and considered as competent in law, to take the 

bonds or obligations of sheriffs, and to qualify them as by law directed. 

An Act to allow further time to Sheriffs and their Deputies, for the 
service of Writs, Process, Declarations and Bills in Equity. — Approved 
Feb. 27, 1856. 

206. Sec. I. Be it enacted^ That hereafter the sheriff and his deputy or 

^\^^ ^Hr' ^i^P^ties, in each and every county, shall be allowed five days after the 

etafextended. time now fixed by law for filing bills of equity, and suits at common law, 

in the several superior and inferior courts of this State, for the purpose of 

serving all writs or declarations at common-law, or bills in equity. Any 

law, usage or custom, to the contrary notwithstanding. 

An Act to compel purchasers of Mortgaged property, purchasers of Life- 
Estates, or Estates-for-term-of-years, in Personal Property, at Sheriff's, 
Coroner's, or Constable's sales, to give Bond. — Approved December 22, 
1830. 



JUDICIARY.— SHERIFF AND DEPUTY. 



77 



207. From and after the passage of this act, it shall he the duty of Purchaser of 
purchasers of personal property, under the incumbrance of mortgage or Mortgaged 
mortgages, at sheriff's, coroner's [or] constable's sale, to give bond and ?^^ r^oi*^ ^ad 
security to said sheriff, coroner or constable, in double the value of the gecurity. 
property so sold, (of which the officer selling shall be the judge;) condi- 
tioned not to move said property out of said State, and deliver up the 

same to the mortgagee, his heirs or assigns, on demand made, after fore- 
closure of said mortgage or mortgages: Provided^ the mortgagee, his Mortgagee to 
agent or attorney, shall tender an affidavit, previous to the sale thereof, tender Affida- 
to the officer selling said property, stating that he, she, or they, are just ^^^' 
and hond fide moitgagees thereof, and that he, she, or they, apprehend 
the loss of said property, unless bond be given in terms of this act. 

208. Sec. II. When any person shall purchase, at any sheriff's, coro- Purchaser pf 
ner's or constable's sale, a life-estate, or an estate-fbr-term-of-years, in I^j^e Estate to 
personal property, it shall be the duty of said sheriff, coroner or constable^^^g® Bond and 
to require of said purchaser bond and security, as aforesaid, for the 
delivery of said property to the party entitled in remainder: Provided'^^dx\ 
the same is required by said party, his agent or attorney, who shall make' 
affidavit of their right to said property, which shall be tendered to the 
officer selling previous to sale; which bonds, when taken, shall be filed in 
the clerk's office of the superior court of the county where said sale is 
made, subject to be sued on for the benefit and use of the said party, when- 
ever the particular estate is determined; which said court shall have power,^ 
on sufficient cause shown, to compel said obligor to give additionar 
security, from time to time, as justice may require, on ten days' previous^--/ 
notice being given. 

209. Sec. III. On failure of said purchaser to give bond and security, 
as aforesaid, it shall be the duty of the said sheriff, coroner, or constable,' 
to re-sell the said property, at the risk and loss of such purchaser. 

Sec. IV. All laws or parts of laws militating against this act are 
hereby repealed. 

Bond to return Mortgaged Property. 

STATE OF GEORGIA, \ ' We, John Doe as principal, and Richard Roe ^ 
Houston County. j security, hereby acknowledge ourselves held and 
bound to Madison Marshall^ Sheriff o? ssiid County, in the sum of one 
thousand dollars, subject to the following condition — 

The conditioQ of the above obligation, is as follows: whereas, said 
John Doe, purchased at the sale of said Sheriff, a certain Negro boy 
named Charles, sold as the property of John Smith. And whereas, 
William Thomas, claims to hold a Mortgage on said Negro hoy : now, 
should said John Doe not move said Negro hoy out of said State, and 
deliver up the same to said William Thomas, the Mortgagee, his heirs 
or assigns, on demand made after the foreclosure of the Mortgage of 
said William Thomas^ then this obligation to be void ; .else, of force. 
This May 1, 1859. 

Attest — John Doe, principal, [L. S.] 

James Mack, J. P. Kichard Koe, security, [L. S.] 

Affidavit of Mortgagee. 

STATE OF GEORGIA, ) Personally appeared before the undersigned, a 
Houston County. j" Justice of the Peace in and for said County, Wil- 
liam Thomas, who being duly sworn, saith that he is the just and 




78 JUDICIARY.--JURIES. 

bond fide Mortgagee of a certain Negro hoy named Charles, the property 
of John Smith. That said Negro hoy has been levied upon by Madison 
Marshall, Sheriff of said County, by virtue of a fieri facias against said 
John Smith, and advertised to be sold on the first Tuesday in May 
next ; and that deponent apprehends the loss of said Negro hoy to an- 
swer said Mortgage, unless Bond be given in terras of the statute in 
such cases made and provided. 

Sworn to and subscribed, ) 
before me, this April 10, 1859. V WiLLIAM ThOMAS. 

James 3Iack, J. F. ] 

Bond of Purchaser of Life- Est ate. 

STATE OF GEORGIA, ) We, John Doe as principal, and Richard Roe as 
Houston Gonnij. j security, hereby acknowledge ourselves held and 
bound to Madison Marshall, Sheriff of said County, in the sum of one 
thousand dollars, subject to the following condition — 

The condition of the above obligation is as follows : whereas, said 
John Doe purchased at the sale of said Sheriff a certain Negro girl 
named Betsy, sold as the property of James Hall, who held but a Life- 
Estate of said Negro girl, and which Life-Estate only was sold by said 
Sheriff. And whereas, Willis Cason claims to be Remainder-man to 
said Negro girl. Now, should said John Doe, well and truly, not move 
said Negro out of said State, and shall deliver said Negro girl Betsy 
to said Remainder-man, when said Life-Estate so purchased by him, is 
over and determined, then this obligation to be void ; otherwise, of 
force. This May 1, 1859. 

Attest — John Doe, principal, [L. S.] • 

James Mack, J. P. Richard Roe, security, [L. S.] 

Affidavit of Remainder- Man. 

STATE OF GEORGIA, | jn person appeared before the undesigned, a 
. Houston GoMXiij. I" Justice of the Peace in and for said County, Wil- 
lis Cason, who being duly sworn, saith that he claims to be Remain- 
der-man to a certain Negro girl nained Betsy, in which Negro girl James 
Hall is possessed of a Life-Estate, which Life-Estate has been levied on 
as the property of said James Hall, and advertised to be sold, hy the 
Sheriff of said County, on the first Tuesday in May next. And de- 
ponent further saith, that he apprehends the loss of said Negro girl, 
unless Bond be given in terms of the Statute in such case made and 
provided. 

Sworn to and subscribed, ) 

before me, this JpnZ 10, 1859. V WiLLTS CaSON. 

James Mack. J. P. \ 



JURIES. 

SIO. Sec. XXXVIII. The clerks of the superior courts of the respec- 
List of Jnroi-s tive counties, shall procure from the tax collector of such county, and 
how procured, furnish to the court, within two months, a list of persons liable and quali- 
fied to serve as grand and petit jurors, agreeably to the qualifications 



JUDICIARY. -JURIES/ 79 

lierein-after prescribed. And all free male white citizens, above the age Qualification 

of twenty-one years and under sixty years, [see 237,] are declared to be of Jurors. 

qualified and liable to serve as petit jurors for the trial of all civil causes 

for recovery of debts or damages, to any amount whatsoever. But no 

person shall be capable to be of a jury for the trial of treason, felony, 

breach of the peace or any other cause of a criminal nature ; or of any 

estate of freehold ; or of the right or title to any lands or tenements, in any 

court of record within this State, who shall not be qualified to vote at 

elections for members of the legislature. And if any person not qualified 

as aforesaid, shall be returned on any jury, he shall be discharged on the 

challenge and proof thereof, of either of the parties to such suit, or on f^is 

own oath of the truth thereof: Provided^ that no exception against any ^^^^J jn • !^ 

juror, on account of his qualification, shall be allowed after he is sworn. sworn. 

211. Sec. XXXIX. The clerks of the several courts are required in Manner of se- 
presence or under the direction of the judge or judges of such court, to ^^^ting Jurors, 
regulate and correct the several jury lists annually, by particularly speci- 

.fying in distinct columns, the persons most able, discreet, and qualified, as 

herein mentioned, to serve as grand jurors. Which list so corrected, 

shall be committed to the safe-keeping of the clerks of such courts resjoec- 

tively ; and the clerks of such courts shall immediately after receiving such clerk's duty. 

lists, fairly enter the same in a book for that purpose, to be provided by 

such clerk, at his own expense, distinguishing in separate columns, the 

persons selected to serve as grand jurors, and those for the trial of civil 

and criminal causes as aforesaid. And the names of the persons so 

selected, shall be written on separate pieces of paper and put into the 

different apartments of a jury-box, to be provided by the clerk, at the 

public expense ; in the construction and manner herein-after prescribed, to 

wit : there shall be an apartment in the said jury-box marked ISTo. 1, in 

which shall be placed the names of all the jDcrsons selected to serve as 

grand jurors, and another apartment marked 'No. 2, into which shall be 

placed the names of all persons selected for the trial of civil and criminal 

causes as aforesaid; which box shall be kept locked; and no jury shall be 

drawn or impannelled but in the presence of one or more of the judges and 

clerk of the court. Xor shall any clerk of the court or other person 

having the custody of the jury-box, presume on any pretence whatsoever, 

to open the said jury-box, transpose or alter the names, except it be in the 

presence of the judge or justices, officially attending for the purpose of 

drawing jurors, or correcting the list, under penalty of being dealt with 

in the manner herein pointed out for mal-practice in office. 

212. Sec. XL. The said judge or justices and clerk of the court, or Manner of 
person having custody of the key, shall previous to the adjournment of ^""'"^^i^o J^" 
any superior court, or at least two months prior to the sitting of the next 

court, cause to be drawn out of the apartment of the said box marked Xo. 1, 
not less than twenty-three nor more than thirty-six names, as grand 
jurors. And out of the apartment marked Xo. 2, not less than forty-eight 
nor more than seventy-two names, as petit jurors, for the trial of civil and 
criminal causes, as aforesaid. Which names so drawn out, shall after an 
account is taken of them, at each term or time of drawing, be carefully 
rolled up again, and deposited in the two other apartments to be provided 
in such jury-box, marked Xos. 3 and 4, to wit: the names of the grand 
jurors in the division Xo. 3, and the names of the petit jurors in the divi- 
sion Xo. 4. And when all the names shall be drawn out of the apart- 
ments Xos. 1 and 2 aforesaid, they shall then commence drawing from the 
apartments Xos. 3 and 4, and return them into the [cfpartme?its'\ Xos. 1 
and 2, and so on alternately. — [See 219.] 



80 



JUDICIARY.— JURIES. 



Number of 
Grand Jury. 

Names to be 

entered on 

Minutes. 

J. S. C. may 

draw Juries in 

certain cases. 



Judges re- 
sponsible for 
drawing Ju- 
ries. 
J. I. C. to re- 
spect request 
of Judge to 
draw Juries. 

Precept to be 
issued by the 
Clerk and de 
livered to the 
Sheriff. 



Jurors to be 
summoned 

ten days be- 
fore Court. 



Form of Sum- 
mons. 



Sheriff must 
make return. 



Clerk's duty, 



Defaulting 

Jurors to be 

fined. 



213. Sec. XLI. No grand jury shall consist of less than eighteen or 
more than twenty-three, but twelve may find a bill or make a present- 
ment. And the names of the several jurors to be drawn as aforesaid, shall 
immediately after they are drawn out, be entered by the clerk on the 
minute-book of such court. And if it shall so happen, that from any vma- 
voidable circumstance, the judge shall not attend at the time appointed 
for holding the superior court of any county, he shall nevertheless, attend 
in person for the purpose of drawing jurors, or shall transmit to the justices 
of the inferior court of such county, a request in writing, that they, or any 
two of them, attend at the clerk's office, on some convenient day, at least 
two months preceding the next term, for the purpose of drawing grand 
and petit jurors, in manner herein-before directed. And the said judges 
of the superior courts are declared to be responsible for the legal and 
regular drawing of juries, in the respective circuits in which they may pre- 
side. And in case of such unavoidable circumstance, specially stated by 
any judge of the superior court, the said justices, or any two of them, 
shall and are hereby required, to conform to such request, by attending 
and drawing juries, agreeably to this act. 

214. Sec. XLII. The clerk of the court shall annex a pannel of the 
jury, containing the names of the persons drawn to serve on the grand 
inquest, exactly transcribed from the minute-book, to the precept for sum- 
moning such grand jury. And shall also, annex another pannel contain- 
ing the names of the persons drawn as petit jurors, for the trial of civil 
and criminal cases, exactly transcribed as aforesaid, to the precept for 
summoning the petit jurors; in the mandatory part of which precept shall 
be written, the words following, viz. : " The several persons named in the 
pannel hereunto annexed." Which precept, with the several pannels 
annexed as aforesaid, shall be delivered by the clerk of the court, within 
three days after the drawing of such juries as aforesaid, to the sheriff of 
the county or his deputy. 

215. Sec. XLIII. The sheriff or his lawful deputy for the time being, 
upon the receipt of any precept for summoning grand or petit jurors, shall 
cause the several persons whose names are written in the pannel thereunto 
annexed, to be served with a summons, at least ten days before the sitting of 
the court for which tiiey are drawn and em pannel led. Which summons shall 
be in the following words, or words to that effect : "By virtue of the precept 
to me directed, you are hereby commanded to appear before the judge of the 
superior court, at the next superior court, to be held at the court-house, in and 
for the county of on the day of at ten 
o'clock in the forenoon of that day, to be sworn on the grand jury, (or as a 
juror for the trial of civil and criminal causes, then and there depending," as 
the case may be.) Which shall be siorned by the sheriff or his lawful 
deputy for the time being. Which sheriff or lawful deputy aforesaid, shall 
make return of all such precepts ; in each of which he shall set forth the names 
of all such persons as shall have been summoned by virtue of such writs or 
precepts, and the time when they were summoned; and also, the names of 
the persons whom he may not have summoned, together with the reasons why 
they were not summoned, on pain of being fined by the court. 

216. Sec. XLIV. The clerk of the court shall make due entry in the 
minute-book of such court, of the appearance of all jurors; and shall likewise 
enter and make report of the names of all such as shall make default in 
appearing. That if any person who shall be drawn, impannelled, summoned 
and returned to serve as jurors, at any court as aforesaid, shall neglect or re- 
fuse to appear, or after appearance shall refuse to serve, or shall absent him- 
self without leave of the court, then and in that case, it shall be lawful for the 



JUDICIARY.— JURIES. 81 

court to fine such person, if a petit juror, in a sum not exceeding twenty dol- Petit Juror 
lars, and if a grand juror, in a sum not exceeding forty dollars, unless such 120, Grand 
juror shall show good and sufficient cause of excuse, to be made on oath, be- ^^^^^ ^^^' 
fore any justice of the peace, and filed in the clerl<:'s office of such court, within be^made^"^ 
thirty days after opening the said court ; the merits of which excuse shall be 
determined by the next succeeding court. And when from challenge or other- Talismen mar 
wise, there shall not be sufficient number of jurors to determine any civil or^^ employed, 
criminal cause, the court may order the sheriff or his deputy to summon by- 
standers, or others qualified as herein-before required, for the trial of such 
cause or causes, sufficient to complete the pannel. And when the sheriflT or Sherifif dis- 
his deputy are disqualified from acting in the manner herein expressed, jurors ^"^Hfi^d, Cor- 
shall be summoned by the coroner, or such other disinterested person as the^°^^ may act. 
court may appoint. 

217. Sec. XLV. The oath to be administered to petit jurors in civil cases Oath of Petit 
shall be in the form following: ''You, (A. B.) shall well and truly try the Jurors, 
cause depending between the parties at variance, and a true verdict give, ac- 
cording to evidence — so help you God." 

Precept /or Summoning Jurors. 

„ , „ ^ ' > To Madison Marshall, Sheriff of said County : 



Houston County. 

You are hereby commanded and required to summon the several 
persons named in the Pannel hereunto annexed, to be and appear at 
the Superior Court, to be holden in and for said County of Houston^ 
on the fourth Monday in October next, by ten o'clock in the forenoon 
of that day ; then and there to be sworn as Grand and Special (or 
Petit, as the case may be,) Jurors ; to serve during the October Term 
of said Court, in the year of our Lord, eighteen hundred and fifty- 
nine. And this, said Jurors, nor either of them, may omit, under the 
penalty of forty dollars, (if a Grand Juror, or twenty dollars, if a Petit 
Juror,) they having been drawn as Jurors, as aforesaid, according to 
law. And have you then and there this Precept. 

Witness^ the Hon. Henry G. Lamar., Judge of said Courts this May 
1, 1859. 

William H. Miller, Clerh. 

List of Jurors annexed to the above Precept. 

1. Samuel Felder, 4. Julius C. Gilbert, 

2. William H. Talton, 5. John H. Powers, 

3. John G. White, &c., 6. Claiborn Bateman, &c. 

Affidavit of Defaulting Juror. 

STATE OF GEORGIA, 1 j^ person appeared before the undersigned, 
Houston County. j Samuel Felder^ who being sworn, saith, that he 
was summoned to attend the Superior Court as a Grand Juror, at the 
last term of said Court ; that he made default in not attending said 
Court, for which default he has been fined ; that his reason for not at- 
tending said Court, was that he was sick and entirely unable to attend* 

Sworn to and subscribed, 1 o xn 

before me, ih\& November 1, 1859. V bAMUEL J^ ELDER. . 

Simpson Moore, J. P. ) 

6 



82 JUDICIARY— JURIES. 

An Act for the better selection and drawing Grand Juries for the several 
Counties in this State. — Approved Dec. *I, 1805. 

Grand Juries 218. Sec. I. It shall be the duty of the justices of the inferior courts of 

how to be se- g^ch county, together with the sheriff and clerk, or a majority of them, to 
lected. convene at the court-house of their respective counties, on the first Monday in 
June next, and biennially, on the first Monday in June thereafter ; whose duty 
it shall be to select from the books of the receiver of tax returns for their re- 
spective counties, fit and proper persons to serve as grand jurors. And shall 
make a list of persons so selected, and transmit it, under their hands, to the 
next superior court of their respective counties. And it shall be the duty of 
the judge then presiding, to cause the clerk of the said superior court to make 
out tickets, with the names of the persons so selected, which tickets shall be put 
in a box to be provided by the clerk, at the public expense ; which said box 
shall have two apartments, marked numbers one and two. And the clerks of 
said courts shall, immediately after receiving such lists, fairly enter the same 
in a book for that purpose, to be provided at his own expense, distinguishing 
in separate columns, the persons liable to serve as grand jurors and those for 
the trial of civil and criminal causes, as pointed out by law. Which said box 
shall be locked and sealed up by the judge, and placed in the care of the clerk, 
and the key in the care of the sheriff. And no grand jury shall be drawn and 
impannelled but in the presence of the judge in open court; nor shall any 
clerk of the court, or other person having tiie custody of the jury-box, pre- 
sume on any pretence whatever, to open the said jury-box, transpose or alter 
the names, except it be by the direction of the judge in open court, attending 
for the purpose of drawing jurors, under the penalty of being dealt with in 
the manner pointed out by law for mal-practice in office. — \_See 236.] 

^The presiding 219. Sec. II. The said judge in open court, shall unlock and break the 

•j^^g^ *^ ^^^^^ seal, and cause to be drawn out of the apartment of the said box, marked 
e uries. jj^j^j^gj. q^^^ ^^^^ jggg than tvrenty-three nor more than thirty-six names, 
to serve as grand jurors ; w^hich names so drawn out, shall after an 
account is taken of them, at each time of drawing, be carefully deposited 
in the other apartment of such box, marked number two. And when all 
the names shall be drawn out of the apartment number one, as aforesaid, 
they shall then commence drawing from the apartment number two and 
return them into number one, and so on alternately. But no name so 
deposited, shall on any pretence whatever, be destroyed, except it is 
within the knowledge of the judge that the said juror is either dead, re- 
moved out of the county, or otherwise disqualified by law, or the sheriff 
certify the same. 

■Jurors stand ^^^0. Sec. III. If it shall so happen that there should be a failure of the 
over when court in consequence of the non-attendance of the judge, then and in that 
Court not case, the jurors being summoned, shall stand over to the next succeeding 
Select'on "t^^'i'i^? i^^ tbe same manner as suitors and witnesses do in like cases : Provided 

-omitted bow cdioays^ that if the said justices, sheriff and clerk aforesaid, shall fail to 

to be made, make such selection on the day aforesaid, that then it shall be the duty of 

the said justices, sheriff and clerk aforesaid, or a majority of them, to 

make such selection, at or before the next superior court thereafter, which 

shall be held in their I'espective counties. — [See 228.] 

Part of the 221. Sec. IV. So much of an act, entitled "an act to amend an act, 

Judiciary of entitled an act to revise and amend the judiciary system of this State," 

1799 repealed, passed at Louisville, the 16th day of February, 1799, as militates against 
this act, be and1:he same is hereby repealed. — [^See 236.] 

An Act to give Relief to all ordained Ministers of the Gospel, so far as 
respects their serving as Jurors, or doing Militia duty. — Approved Dec. 
12, 1809. 



JUDICIARY— JURIES. 83 

Whereas, the ordained Ministers of the Gospel are not by law exempted 
from serving as Jurors, or doing Militia duty ; for remedy whereof — 

222. Sec. I. J^e it enacted, That from and after the first day of Janu- m. of the G. 
ary next, no ordained Minister of the Gospel shall be compelled to do excused from 
militia duty within the limits of this State, in time of peace. Militia duty. 

223. Sec. II, That the judges of the superior courts, the justices of ^^^^ ^^^^ j^_ 
the inferior courts, and justices of the peace, are hereby authorized, on ry duty, 
application, to excuse them from service on the juries of their different 

courts ; the application to be made in writing, or otherwise. 

Ais^ Act to amend the several Judiciary acts now in force in this State. — 
Approved Dec > 15, 1810. 

224. All special jurors shall be taken from the grand jury list of the Special Jurors 
county, and struck in the presence of the court, in the following manner — l^ow selected, 
the clerk shall produce a list of the grand jurors present and there im- 
pannelled, from which the parties plaintiff and defendant, or their attorney, 

may strike out one alternately until there shall be but twelve jui-ors left, 
who shall forthwith be impannelled and sworn as special jurors, to try the 
appeal cause ; in all cases the appellants shall strike first. And in case of 
refusal in either to strike such special jurors after due notice given for the 
purpose and proof thereof, the judge before whom such notice is given 
for such special jury to be impannelled, shall on behalf of such absent- 
party, or his attorney, proceed in the same way and manner, as if the 
party absent or refusing had been present, or consented to the same. 

An Act to amend the LVIth section of the Judiciary Law of this State. — 
Approved Dec. 4, 1811. 

225. Sec. I. • The oath to be administered to special jurors, except in cases Special Ju- 
of divorce, shall be in the words following, to wit: "You shall well and ror's Oath, 
truly try each cause submitted to you during the present term, and a true 

verdict give, according to equity and the opinion you entertain of the 
evidence produced to you, to the best of your skill and knowledge, with- 
out favor or affection to either party : Provided, you are not discharged 
from the consideration of the case or cases submitted — so help you God." 

A:^r Act to admit Grand Jurors to give evidence. — Approved Dec. 10, 

1812. 

Whereas, doubts do exist as to the propriety of admitting grand jurors 
to give evidence against persons who may have been sworn before them 
when in session as a grand jury, on account of that part of the oath which 
requires them to keep secret the State's counsel, their own and their fel- 
lows' ; which secrecy ought not to exist longer than the term, or after the 
bill is publicly read in court ; for remedy whereof — 

226. Sec. I. Be it enacted, That all grand jurors shall be competent Grand Jurors 
witnesses in any court of record in this State, where it may be necessary, may give evi- 
on account of anything that may be given in evidence before them as a 

body of grand jurors. Any law to the contrary notwithstanding. 

227. Sec. II. In future, the oath to be administered to the foreman of Oath of the 
all grand juries, shall be as follows, viz. : " You, as foreman of the grand jury Grraud Juries, 
of the county of , shall diligently inquire, and true presentments make 

of all such matters and things as shall be given you in charge, or shall 
come to your knowledge touching the present service. The State's coun- 
sel, your fellows' and your own, you shall keep secret, unless called on to 
give evidence thereof in some court of law in this State. You shall pre- 
sent no one for envy, hatred or malice, nor shall you leave any one unpre- 



84 JUmCIARY.— JURIES. 

sented from fear, favor, affection or reward, or the hope thereof; but you 
shall present all thmgs truly and as they come to your knowledge — so help- 
you God." And the same oath which is taken by the foreman, shall be 
taken by each and every member of any and all grand juries in this State. 

Note. — In addition to the abo*ve oath, the Solicitor-G-eneral at the same time, swears the 
Foreman as a Special Juror and as a Juror to try Claim-Appeal cases. The Clerk then calls 
up four at a time, the other members of the Grand Jury who iieard the Oaths as they 
were taken by the Foreman, and the Solicitor-General administers to them the following 
oath : "The same Oaths that your Foreman has taken on his part, you and each of you 
do take, and shall well and truly observe and keep, on your part — so help you God." 

Should any of the members of the Grand Jury join the body after the Foreman has been 
sworn, the Oaths as administered to him must be administered to them in full. 

An Act to authorize the Justices of the Inferior Courts in this State, to 
draw Grand and Petit Jurors, in certain cases. — Approved Wov, 30, 
1815. 
Judge failing 228. The justices of the inferior courts for the several counties in this 
to draw Ju- State, or a majority of them, together with the sheriff and clerk of the 
^mav do it superior court, in any of their several counties, be and they are hereby au- 
thorized and required, in all cases where there shall or may have been a 
failure of the judges of the supeiior courts, in drawing grand and petit 
jurors agreeably to law, to assemble at the court-house in their several 
counties, at any time which shall be to them convenient, and proceed to 
open their jury-boxes, and draw from said boxes a sufficient number of 
names to serve as grand and petit juroi's, for their or either of their said 
counties, at their next then dej^ending superior courts. And the jury 
being so drawn, the said box or boxes again to seal and deliver, together 
with the keys, to the proper officer : Provided^ that said assemblage and 
drawing shall be at least sixty days previous to the commencement of the 
superior court at which said jurors shall be liable to serve. — [And see 
next Aet.]^ 

An Act to authorize the Justices of the Inferior Courts in this State to 

draw Juries out of Term-time. — Approved Dec. 13, 1820. 

Tin «,„,, S29. Sec. I. From and after the passino- of this act, that it shall be 

draw Jury forl^wiul m all cases where it happens that the justices oi any mierior court, 

their Courts at the regular term of said court, shall omit drawing a jury to serve at the 

under certain succeeding court, that the justices of' said court, or any three of them, 

with the sheriff and clerk, meet at the place of holding such court, at least 

forty days previous to the sitting of said court, and draw a jury, under the 

same regulations that they ought to have done in term time. 

May draw a 230. Sec. II. When any inferior court in this State, at the regular 

Jury at any term of said court, have omitted drawing a jury to serve at the next court, 

^^^^' that they shall after the passing of this act, be authorized to draw a jury 

at any time, under the same regulation as in the preceding section. And 

furnish Sh"^ff^^^* the said clerk of the inferior court shall immediately after the drawing 

with list, who ^^ said jury as herein provided, make out a list of the jury so drawn, and 

must summon place the same in the hands of the sheriff or deputy, who shall proceed im- 

Jury. mediately after receiving the same, to summon the jury so drawn, in the 

same manner as if they had been drawn at the regular term of said court. 

Jurors must And the said jurors so drawn and summoned, shall be bound and liable to 

attend. serve in the same manner, and under the same penalties, as if drawn at the 

regular term of said court. Any law to the contrary notwithstanding. 

An Act to define the duties of Grand Jurors in this State, so far as 
respects the time they are to be considered bound to notice Offences 
committed in their respective counties. — Approved Dec, 22, 1829. 



circumstan- 
ces. 



JUDICIARY.— JURIES. 85 

231. Grand jurors shall be bound only to notice or make presentment When Grand 
of such offences as may or shall come to their knowledge or observation, Jurors bound 
after they shall have been sworn. But nothinjy in this act shall be con- ^^ notice of- 
sidered as impairing their right as jurors, to make presentments of any 
violations of the laws which they may know tq have been committed at 

any previous time. 

Sec. II. All laws and pai'ts of laws militating against the intent and 
meaning of this act, are hereby repealed. 

An Act to amend and alter the Oath of Bailiifs Avho take charge of Special 
and Petit Juries, and for other purposes. — Ap^jroved Dec. 26, 1831. 
W^hereas^ the oath now administered to Bailiffs, requires them to keep 
the Juries without meat, drink, or fire, candle-light and water only 
excepted. And whereas^ it often happens, that in cases of much litiga- 
tion. Juries are unable, for a great length of time, to agree upon a verdict, 
and are thereby exposed to cold and hunger ; for remedy whereof — 

232. Sec. I. Be it e^iacted^ That the following shall be the oath to be Bailiff's oath 
administered to all bailiffs sworn to take charge of special and petit juries, when charged 
in the superior and inferior courts of this State, to wit : " You shall take with Juries, 
this jury, and all others committed to your charge during the present term, 

to the jury-room, or some other private and convenient place, where you 
shall keep them without meat, drink or fire, candle-light and water only 
excepted, unless otherwise directed by the court. You shall not speak to 
them yourself, nor suffer others to sj^eak to them, unless it be by leave of 
the court ; to ask them if they have agreed upon a verdict, or are likely to 
agree ; all this you shall do, to the best of your skill and power — so help 
you God." 

233. Sec. II. Whenever it shall so happen that the jury is confined in Judge may al- 
the investigation of any case, for a length of time, which exposes them to low Jury to 
hunger or cold, or both, the court may on application from said jury, ^^^® refresh- 
direct them to be furnished, at their own expense, with such nourishments, ^^^ '^' 

as in his own judgment, may seem just and proper. And permit them to 
have provisions and fire, or either, if circumstances should, in the judg- 
ment of the court, require it. 

234. Sec. III. The said bailiffs shall receive from the county-treasurer. Bailiffs pay. 
(or clerk of the court, where there is no treasurer,) of each county, |1 per 

day, in addition to their present fees, for each day the said bailiffs shall 
serve, in attendance on the juries. — [_See Fee-Bill^ for additional Fees?\ 

An Act to relieve the Justices of the Inferior Court from Jury-duty. — 
Approved Feb. 21, 1850. 

235. Sec. I. Be it enacted^ That from and after the passage of this act, j. i c. ex- 
all justices of the inferior courts of this State, be and the same are hereby, empt from 
at their own option, exempt from jury duty. Jury-duty. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to provide for the selection of Grand and Petit Jurors, in certain 
cases. — Approved March 3, 1856. 

236. Sec. I. Be it enacted^ That whenever the jury-boxes or lists of When Jury 
names of grand and petit jurors of any county shall be destroyed, it shall ."^^f ^? ^' 
and may be lawful for the justices of the inferior court, clerk and sheriff i^g^^of JuroTs 
thereof, or a majority of them, so soon thereafter as may be practicable, made out. 
to meet at the court-house in such county, and select lists of names of grand 

and petit jurors, and arrange them in boxes, as provided for by act of 
December 7th, 1805. 



86 JUDICIARY— JURIES. 

An Act declaring who are qualified and liable to serve as Jurors in criminal 
cases ; regulating the manner of impannelling a Jury in such cases ; 
declaring who are competent Jurors, and the mode and manner of ascer- 
taining such competency, and for other purposes therein mentioned. 
— Approved Feb. 28, 1856. 
Who qualified 237. Sec. I. All free white male citizens w^ho have arrived to the age 
to serve as ^f twenty-one years, and not over sixty years, and residents in the county 
Jurors. ^vhere the trial is to be had, and not being idiots or lunatics, shall be quali- 
fied and liable to serve as jurors upon the trial of all criminal cases. 
Number of 238. Sec. II. When any person stands indicted for an offence which 
Jurors impan- ^p^j^ conviction, will subject him to the punishment of death, or confine- 
ment in the penitentiary, it shall be the duty of the court, upon the request 
either of the State or the accused, to have empannelled forty-eight men, 
from whom to select a jury for the trial of such offender. 
Grand Pannel 239. Sec. III. Said pann el of forty-eight men shall be composed of the 
how com- twenty-four men who are serving as petit jurors at the court when the trial 
" is had, and twenty-four men summoned by order of the court, indiscrimi- 
nately and impartially from the citizens of the county, qualified as aforesaid. 
And if twenty-four jurors are not in attendance, the panel of forty-eight 
shall be made up by persons served {liable to serve'] as aforesaid. 
List to be fur- 240. Sec. IV. It shall be the duty of the clerk to make out three lists 
nisbed the ^f g^id pannel, one of which shall be furnished to the counsel for the State, 
Parties. ^^^ ^^j. ^^^ counsel of the accused, and one the clerk shall keep himself. 
After such lists are thus furnished, the clerk shall call over the names of 
the persons composing the pannel, and so soon as this is done, the pannel 
shall be immediately put on the accused. 
Challenge to 241. Sec. V. If the accused thinks proper, he may then challenge the 
the array, array, which challenge shall be made in writing, particularly specifying the 
causes of such challenge ; and it shall be the duty of the court immediately 
to determine the sufliciency of the same. 
How to pro- 242. Sec. VI. If the court determines the causes of such challenge 
Ph^il ^a^^ sufficient, the pannel shall be discharged, and the court shall immediately 
+v,a^o,.toS^c„o cause a new pannel of forty-eiMit men to be summoned indiscriminately and 

UltJ ctridjr bub- . 'nr* i • • c i Tr^T J? 'TT 

tained. impartially, irom the citizens oi the county, qualitied as aioresaid ; and. 
shall proceed with this pannel, in the same manner as is prescribed by this 
act in relation to the first pannel ; and if the accused shall challenge this 
pannel and the causes of challenge shall be adjudged sufficient by the court, 
such pannel shall be discharged, and the court shall immediately cause 
another pannel to be summoned, in manner aforesaid; and shall so proceed 
until a pannel is obtained to which there is no legal objection. 
Jurors how ^243^ g^^^. yjj If the first pannel shall be challenged and the causes of 
*^oWected ^0 *^ *^^ challenge shall be adjudicated insufficient by the court, the clerk shall 
call the first name on the list, and the person so called shall be presented to 
the accused in such manner that he can distinctly see him, and then it 
shall be lawful for the State, or the accused, to make the following objec- 
tions, to the person so presented : — 

Firsts that he is not a free white citizen, resident in the county. 
Second^ that he is not twety-one years of age, or that he is over sixty 
years of age. 

Thirds that he is an idiot, or lunatic, or intoxicated. 

Fourth^ that he is so near of kindred to the prosecutor, or the deceased, 

as to disqualify [him] by law, from serving on the jury. 

Objections^^ 244. Sec. VIII. It shall be the duty of the court immediately to 

into ar?d de- ^®^^' ^^^^ evidence, in relation to the truth of said objections, as he 

termined. shall see proper; and if he shall be satisfied that either of said objections 



JUDICIARY—JURIES. 87 

are true, the person so presented shall be set aside for cause ; and the clerk 
shall call the next person on the list, and the court shall proceed with him 
in the same manner as with the person first presented, and so on with 
every person presented, and the State or the accused may make the same 
objection to any person presented, which shall be disposed of in the same 
manner. 

245. Sec. IX. If no objection is made as aforesaid, or b'eing made, is Questions ta 
ovei'ruled by the court, the attorney prosecuting for the State, shall put to determine 
the person presented as aforesaid, the following questions : 

Have you, from having seen the crime committed, or having heard any 
part of the evidence delivered on oath, formed or expressed any opinion, 
as to the guilt or innocence of the accused ? 

If he shall answer this question in the negative, the following questions 
shall then be put to him : — 

Have you any prejudice or bias resting on your mind, for or against the 
accused ? 

If he shall answer this question in the negative, the following question 
shall be jDut to him : — 

Is your mind perfectly impartial, between the State and the accused ? 
And if he shall answer this question in the affirmative, he shall be adjudged' 
and held a competent juror, in all cases where the offence does not involve 
the life of the accused ; but when it does involve his life, the following 
additional question shall be put to him : — 

Are you conscientiously opposed to capital punishment ? Competency 

If he shall answer this question in the neerative, the person so presented ^^ capital 
shall be held and adjudged a competent juror m capital cases also : 
Provided nevertheless^ that either the State or the defendant, shall have 
the right to introduce evidence before the judge, to show that the answer, 
or any of them, of the jurors, are untrue ; and it shall be the duty of the 
judge to determine upon the truth of such answer, as may be thus ques- 
tioned before the court. 

246. Sec. X. If the person so presented shall answer any of the said Challenge for 
questions in the affirmative, except the one as to his mind being impartial Cause, 
between the State and the accused, and shall answer that question in the 
negative, he shall be set aside for cause, and the clerk shall call the next 

person on the list, and the court shall proceed to ascertain his competency 
in the manner aforesaid, and shall so proceed with each person presented 
as aforesaid, until a jury is impannelled to try the accused. 

247. Sec. XI. If the person presented to the accused shall answer all When Juror 
the aforesaid questions in such manner as to render him a competent iuror, put upon th% 
or the judge upon an objection made, shall decide him to be competent, 

he shall then be immediately put upon the accused unless peremptorily 
challenged by the State, and w^hen so put upon the accused, unless peremp- 
torily challenged by him, shall be sworn as a juror to try said case ; and 
the court shall proceed with every person presented to the accused in a 
like manner, as aforesaid, until a jury is impannelled to try said case. 

248. Sec. XII. When the competency of a juror has been ascertained. Competency 
in the manner herein-before prescribed, and said juror has been adjudged how ascer- 
competent, as aforesaid, no other or further investigation shall be had in tained. 
relation to his competency, either by triors or otherwise, but such jurors 

shall be considered and held free of all exception. 

249. Sec. XIII. Nothing in this act contained shall be so construed as No more^ pe~ 
to give the State, or the accused in any case, more peremptory challenges remptory 
than are now allowed by law. challenges al- 

Sec. XIV. [Repeals conflicting laws.] 



88 JUDICIARY— ATTORNEY AT LAW. 

Challenge to the Array. 

STATE OF GEORGIA \ Indictment for Murder. 

»«• > Superior Court, April Term, 1859. 

JOHN DOE. ) The accused in the above indictment, having 

had the Array of Jurors, summoned in the above case, put upon him, 
hereby excepts to said Array, and for cause of exception says: 
First^ [Set out fully and at large, the cause of exception.] 
Secondly^ &c., &c., 

All which is respectfully submitted to the consideration of the Court 
here presiding. 

John Doe, the accused. 

An Act to authorize the Foreman of Grand-Juries to swear Witnes^ses. — 
Approved Dec. 21, 1857. 
Foreman of 250. Sec. I. Be it enacted^ That from and after the passage of this 
Grand-Juries ^ct, it shall and may be lawful for the foreman of each p'rand-iury, in this 
Oath "^ State, to administer the oath now prescribed by law, to any and all wit- 
nesses who may be required to testify before grand-juries in this State. 
Sec. II. [Repeals conflicting laws.] 

The Oath. 

"The evidence you shall give the Grand-Jury, on this Bill of In- 
dictment, (or Presentment, as the case may be,) [Jiere state the case-^^^ 
shall be the truth, the whole truth, and nothing but the truth — so 
help you God." — CohUs Penal Code, 195. 



ATTORNEY AT LAW. 



251. Sec. XXVI. And if any party, plaintiff or defendant, be here- 
Attorney lia- after non-suited or cast, by reason of the ne2:lect or misconduct of the 

lilp ■for PO'^f'R . ^ • 

' attorney who shall hereafter bring or be employed in such suit, in all cases 
the said attorney shall pay all costs that may accrue thereby, and the court 
shall immediately enter up judgment accordingly, for the same. — [See next 
Act.] 

An Act to amend and explain the XXlXth section of the Judiciary law 
■ of this State. — Approved, Dec. 7, 1812. 

Whei^eas, the above-recited section of the judiciary law of this State, is 

not sufiiciently explicit to effect the object for which it was intended — 

Liability of ^52. Sec. I. De it therefore enacted, That where any attorney shall in- 

Attorney for stitute a suit in any of the courts of this State, for and in behalf of any 

Costs in cer- person or persons who resides or reside out of this State, or out of the 

o,« ^oc«o (.Q^jj^y j^^ which the defendant or defendants may reside, and in which 

such suit may be tried, such attorney shall be liable to pay all costs, in case 

such suit shall be dismissed, or the plaintiff or plaintiffs be cast in his, her 

or their suit. And it shall be lawful for the clerk of said court to issue 

execution against said attorney or attorneys for the amount of the cost of 

said suit. 

attorney lia- ^^^* ^^^' ^^' ^here any attorney shall institute a suit in any of the 

l)le for Costs counties of this State, for any person who resides out of the county in 



tain cases. 



JUDICIARY.— ATTORNEY AT LAW. 



89 



which such suit is brought, and judgment shall be obtained thereon, and the 
sheriff shall return the execution, " no property to be found ;" that then the 
plaintiff's attorney shall be bound for the costs of said suit. And the clerk 
may issue his execution against the plaintiff and the attorney who brought 
said suit, jointly ; for the amount of the cost of such suit. And if any at- 
torney shall retain in his hands any money received by him for any client, 
after being by the court ordered to pay over the same to the principal, he 
shall be struck from the list of attorneys, and never more suffered to plead 
in any of the courts in this State. — [See Counts/ Officers and see next Act.~\ 

An Act to continue in force the act passed on the seventh of December, 1812, 

entitled "an act to amend and explain the twenty-ninth section of the 

Judiciary law of this State," and to require non-resident Attorneys to pay 

Costs in certain cases commenced by them. — Approved Dec. 23, 1839. 

W^hereas, it is held in some of the Judicial Circuits of this State, that the said 

act, so far as the same relates to the liability of Attorneys for Costs, has been 

repealed by the act passed on the twentieth of December, 1834, entitled "an 

act to define the mode in which cost under the act, entitled an act to revise 

and amend an act for ascertaining the Fees of Public Officers of this State, 

passed the 18th December, 1792, shall be taxed and collected in future ;" 

which repeal was not contemplated by the legislature ; therefore — 

254. Sec. I. JBe it enacted^ That the said first-recited act, be and the 
same is hereby fully re-enacted and continued in full force. 

255. Sec, II, It shall and may be lawful for the proper officers to demand 
and receive their full costs from any attorney who resides out of this State, 
before they shall be bound to perform any service in any cause commenced 
by said attorney, where the plaintiff shall reside out of this State, or any 
county thereof. 



where the 
Plaintiff is 
non-resident 
and Defend- 
ant insolvent. 

Defaulting 
Attorney to 
be stricken 

from roll. 



Act of 1812 
re-enacted. 

Non-resident 

Attorney to 

pay Costs in 

advance. 



An Act for the better regulating the admission of Attorneys to Plead and 
Practise in the several Courts of Law and Equity, within this State. — 
Approved Dec. 8, 1806. 

256. Sec I. From and after the passing of this act, all and every person Attorney how 
or persons whatsoever, who are citizens of this State, may on application to admitted, 
the judge of the superior court, be admitted to practice as an attorney : 
Provided^ such person shall produce satisfactory evidence of his moral recti- 
tude, and shall undergo an examination in open court, upon a day assigned 

for that purpose, by the judge. Any law, usage or custom, to the contrary 
notwithstanding. — [See the JFbrms.'] 

257. Sec II. The rule of court relative to the admission of attorneys, j^^ particular 
which requires the applicant to study any particular length of time in the timeof study 
office of any judge or practitioner of law, be and the same is hereby declared required, 
to be abrogated and void. 

An Act to authorize certain persons therein described to Plead and Practise 
in the Courts of Law and Equity in this State, on the terms therein men- 
tioned. — Approved Dec. 20, 1S2S. 

258. Sec, III. When any application for admission to plead and practice 
in the courts of law and equity in this State, shall be made by any person 
who shall produce to the court in which such application shall be made, the Carolina, how 
certificate of a iudge of the court of common pleas, or iudge of the court of admittedto 
equity of the State of South Carolina, duly attested under the seal of either of 
the said courts, stating in substance that such person has practised for three 
years immediately preceding, in the county courts of the said State, as an 
attorney and solicitor, and has maintained a good moral and professional rep- 



Applicants 
from South 



practice in 
this state. 



90 JUDICIARY.— ATTOENEY AT LAW. 

utation, he shall be forthwith admitted to plead and practise as an attorney 
and solicitor in the courts of law and equity in the State of Georgia, without 
a compliance of any form or requisite, except only the payment of the usual 
fees and taking the usual oath: Provided alvmys^ that this act shall not go 
into operation until an act similar in its provisions, shall have been passed by 
the legislature of the State of South Carolina. — \_See 260.] 

An Act to prohibit the Judges of the Superior Courts of this State, from 
practising as Attorneys, Proctors, or Solicitors, in the District or Circuit 
Courts of the United States for the District of Georgia. — Approved Dec. 
20, 1824. 
Judges S. C. 259.- Sec. I. From and after the 25th of November next, the judges of 
prohibited ^^^ superior courts of this State, be and they are hereby prohibited from prac- 
^^°i^ff^^ ^^" ^'<2^"^ ^^ attorneys, proctors, or solicitors, in the district or circuit courts of 
the United States for the district of Georgia. — \^See 265.] 

An Act to provide for the admission of Attorneys and Solicitors from ad- 
joining States and Territories, to Plead and Practise Law in this State. — 
Approved Dec. 19, 1829. 
Attorneys 260. Sec. I. From and after the passage of this act, it shall and may be 
ft-om other law'ful for any judge of the superior courts in this State, in term-time of any of 
Territories ^^'^ superior courts, upon application being made and filed, in writing, to 
how qualified cause a license to be issued by the clerk of said court, to any attorney or 
to practise in solicitor from any of the adjoining States or Territories, to plead and practise 
this State, ji-, ^ny of the courts of law and equity in this State, as fully as if such appli- 
cant were a citizen of Georgia : Provided, said applicant shall, before the 
granting of such license, produce to the judge aforesaid, a certificate from some 
one of the judges of the superior, circuit, or district courts of the State or 
Territory of which he is a citizen, under the seal of said court, stating that he 
is of good moral character, and that he has been regularly admitted to plead 
and practise law in such State or Territory, and is, at the date of such certifi- 
cate, a practising attorney of such State or Territory. 
Clerk's fee for 261. Sec. II. The clerk of the superior court who issues such license, shall 
License. be entitled to and receive the same fee therefor, to be paid by said applicant, 
as is usually paid by persons admitted, who are citizens of this State. 

Sec. hi. All laws or parts of laws militating against this act, are here- 
by repealed. 

Aisr Act to make null and void all Contracts made and entered into, in 
writing or otherwise, between party or parties, Plaintiff or Defendant, 
and Attorney or Attorneys at Law, where the Attorneys shall fail or 
neglect to attend to the suit or suits, which he or they contracted to do ; 
(in person, or by some competent Attorney ;) nntil the rendition of a 
Judgment. — Approved Dec. 26, 1831. 
Professional 262. Sec. I. From and after the passage of this act, all contracts made 
Contracts and entered into between party or parties, plaintiff or defendant, and 
^°\^' ^^ *^® attorney or attorneys-at-law, in- writing or otherwise, shall be held and 
^%lrformed^ deemed null and void, whenever the said attorney or attorneys, shall fail 
to attend in person, or by some competent attorney, to the suit or suits 
which he or they contracted to do, until the rendition of a judgment. 
Forfeiture for 263. Sec. II. If any attorney or attorneys-at-law, as aforesaid, shall 
transferring transfer any note or notes, obligation or obligations in writing, taken or 
Note, etc. received for his or their services as attorney or attorneys, as aforesaid, and 
shall fail to attend to the suit or suits, in person or by some other compe- 
tent attorney, until the rendition of a judgment, he or they shall forfeit 



JUDICIARY.— ATTORNEY AT LAW. 91 

and pay to the person or persons, whom the same was taken from, double 
the amount so transferred, recoverable in any court having jurisdiction of 
the same. 

An Act to permit Attorneys of the State of Alabama to Plead and Prac- 
tise in the several Courts of Law and Equity in this State. — Approved 
Dec. 23, 1835. 

264. Sec. I. From and after the passage of this act, it shall and may Attorney of 
be lawful for any judge of the superior courts of this State, upon applica- Alabama al- 
tion made by any licensed attorney of the State of Alabama, either in lowed to Prac- 
term-time or in vacation, to cause a license to be issued by any of the ^^^ ^^ *^^^ 
clerks of the superior courts, authorizing said attorney to plead and prac- oXrAa^ 
tise in the several courts of law and equity in this State : Provided, the 
attorney making such application shall produce before said judge of the 

superior court, to whom he applies for admission, as aforesaid, his license 
to plead and practise in the courts of Alabama, and a certificate of his 
good moral cliaracter, signed by some judge of the courts of said State, 
and pays to the clerk issuing the license, the sum of five dollars for the 
same. 

Sec. II. [Repeals all conflicting laws.] 

An Act to prohibit certain persons from Pleading and Practising Law, in 
certain cases. — Approved Dec. 22, 1843. 

265. Sec. I. De it enacted, That no person who has been, or may Judges S. C. 
hereafter be, elected to the office of the judge of the superior court of this°^^y ^^^ ^t&o- 
State, shall plead or practice in any of the courts of law or equity of this ' 
State, within the judicial district for which he may be, or may have been 

elected ; between the time of his election and qualification as judge of the 

superior court. And any person violating the provisions of this act, shall 

be guilty of a misdemeanor, and punished accordingly, at the discretion 

of the court : Provided always, that this act shall not prevent any such Except in cer- 

person from appearing [and] prosecuting or defending any cause in which *^^^ cases. 

he may have been actually employed at the time of his election. 

An Act to regulate the admission of Attorneys to Plead and Practise Law 
in the several Courts of Law and Equity, within this State. — Approved , 
Dec. 22, 1847. 

266. Sec. I. De it enacted, That from and after the passage of this Qualification 
act, any person or persons, who are citizens of this State, may on applica- ^^ *^ age, not 
tion to a judge of the superior court, be admitted to practise as an attor- ^^^"^^® 
ney in the courts of law and equity of this State, without any qualification 

as to age : Provided, such person or persons shall produce satisfactory 
evidence of moral rectitude, and shall undergo an approved examination 
in open court. 

267. Sec. II. Any person or persons, under the age of twenty-one Liability for 
years, who may be admitted by virtue of this act, shall be liable, in all Contracts. 
cases, as if he or they w^ere of full age. 

An Act to regulate the Testimony of Attorneys at Law. — Approved Feb. 
21, 1850. 

268. Be it enacted. That from and after the passage of this act, it shall Attorney may 
not be lawful for any attorney-at-law or in equity, in any case hereafter not testify 
commenced, to give testimony in any court of law or equity in this State, ^^i^st or in 
of any matter or thing, either for or against his client, the knowledge of client ^* 
which he may have acquired from his client, or during the existence and by 



92 JUDIOIAEY— .ATTORNEY AT LAW. 

But must An- reason of the relationship of client and attorney : Provided nevertheless^ 
swer ia that no attorney shall be exempted from making answer as defendant, 
Equity. ^rjien a proper case shall be made in equity, and his answer required, as 
by the laws now in existence. 

All laws and parts of laws militating against this act, be and the same 
are hereby repealed. 

Form of Application and Admission. 

PETITIO:Nr. 

STATE OF GEORGIA, \ To the honorable Henry G. Lamar, Judge o 
Houston County. ( the Superior Courts of the Macon Circuit. 
The undersigned Petitioner respectfully showeth, that with a view 
to the Practise of the Law, as a profession, he has applied himself to 
its study. That supposing he may safely go into the Practice, he 
prays such proceedings as are usual and lawful, for the examination 
and admission of applicants; at such time as may suit the Court, dur- 
ing the present Term. Eespectfully submitted, Octoher Term, 1859. 

Clinton L. Duncan. 

Certificate of Character. 

STATE OF GEORGIA, i To the honorable Henry G. Lamar, Judge of 
Houston County. \ f]^^ Superior Courts of the Macon Circuit. 
The undersigned certifies, that he has, for a number of years, been 
acquainted with the Petitioner, Olinton L. Duncan ; that he is of good 
moral character, and has studied Law with a view to its Practice. 
Octoher 25, 1859. 

John M. Giles. 
Oath of the Applicant. 

" I, Clinton L. Duncan, do solemnly swear, (or affirm, as the case 
may be,) that I will justly and uprightly, demean myself, according to 
the Laws, as an Attornej^, Counsellor and Solicitor. And that I will 
support and defend the Constitution of the United States, and the 
Constitution of the State of Georgia — so help me God." 

Commission, 

STATE OF GEORGTA.~At a Superior Court, holden in and for 
the County of Houston, at Octoher Term, 1859. 

Know all men by these presents, that at the present sitting of this 
Court, Clinton L. Duncan, made his application for leave to Plead and 
Practise in the several Courts of Law and Equit}^ in this State ; where- 
upon the said Clinton L. Duncan having produced satisfactory evidence 
of his good moral character, and having been examined in open Court, 
and being found well acquainted with and skilled in the Laws, he was 
admitted by the Court, to all the privileges of an Attorney, Solicitor 
and Counsellor, in the several Courts of Law and Equity in this 
State. 

In testimony whereof the presiding Judge has hereunto set his 
band, with the seal of the Court annexed, this Octoher 25, 1859. 
[L. S.] Henry G. Lamar, J. M. C. 

William H. Millery Clerk, 



JUDICIARY.— SPECIALTIES, BONDS, BILLS, ETC. 93 

Eighth Common Laio Rule. — " Every person making application for 
admission to the Bar, must apply to some Superior Court in this State, 
and produce satisfactory evidence to the Court, [of his being twenty-one 
years of age^ this is unntcessary — see act of 1847 ;] of good moral char- 
acter, [and of having read Law; unnecessary^ see ac^o/'1806.] A cer- 
tificate of good moral character, [and of the applicant's being of full age,'] 
signed by any Judge of the Superior Courts in this State, or any repu- 
table practising Attorney thereof, will be deemed sufficient; but from 
other persons, a written affidavit will be required ; and shall undergo 
the whole examination, touching bis qualifications, in open Court. All 
applicants for admission shall be examined on the principles of the 
Common and Statute Law of England, in force in this State ; the prin- 
ciples of Equity ; the Constitution of the United States, and of the 
State of Greorgia ; the Statute Laws of this State, and the Kules of 
Court. And in no case, shall any person be admitted who shall not 
be considered by the Court, to be qualified for the Practise of the 
Law." 

License of an Attorney from another State or Territory, 

STATE OF GEORGIA. 

At a Superior Court, holden in and for the County of Houston, at 
October Term, 1859, James Jones, of the State of Tennessee, a Practising 
Attorney of said State of Tennessee, made application, in writing, for 
permission to Plead and Practise in the Courts of Law and Equity, in 
this State. And said James Jones, having given satisfactory evidence 
of his being an Attorney in said State of Tennessee, and of his good 
moral character ; it is ordered, that the said James Jones, be and he is 
hereby admitted to all the privileges and immunities of an Attorney at 
Law of this State, as fully as if said Jam.es Jones were a citizen of this 
State. 

Witness the honorable Henry G. Lamar, Judge of said Court. 

[L. S.] William H. Miller, Clerh. 

An Act to permit Practising Attorneys, to hold the Office and discharge 
the duties of Justice of the Peace, in this State. — Approved March 5, 
1856. 
269. Sec. I. He it enacted, That from and after the passage of Practising: Afc 

this act, it may and shall be lawful for any practising attorney to hold toi'J3_ey may 

and discharge the duties of justice of the peace, in the" State of Georgia. Justice. 

All laws and parts of laws, heretofore passed, to the contrary notwith- 

standing^. 



SPECIALTIES, ETC. 

270. Sec. XXV. All bonds and other specialties, and promissory p j vr ^ 
notes, and other liquidated demands, bearing date since the 9th day of etc. negocia- 
June, 1791, whether for money or other thing, shall be of equal dignity ' ble. 
and be negociable by endorsement, in such manner and under such re- 
strictions as are prescribed in the case of promissory notes : Provided^ 



94 JUDICIARY.— SPECIALTIES, BONDS, BILLS, ETC. 

] Negociability that nothing herein contained shall prevent the party giving any bond, 
may be re- note or other writing, from restraining the negociability thereof, by ex- 
strained, px'essing in the body thereof, such intention. 

An Act to ascertain and establish a certain and uniform mode of calculat- 
ing the prices of Specific Articles, in contracts between individual and 
individual in this State. — Approved Dec. 1, 1800. 

IVhereas^ it doth frequently happen that in the ordinary transactions 
between individuals of this State, Contracts are entered into for the pay- 
ment of Specific Articles, which Contracts may have been either verbal or 
written. A?id tchereas, great difficulty and uncertainty has occurred in the 
trial of such cases in Courts of Justice, in ascertaining the time from 
which the prices of such Specific Article should be calculated ; for remedy 
whereof, and for the establishment of some precise mode of estimation in 
future — 
Contract for 271. jBe it enacted^ That on every bond, note or other instrument in 
Specific Arti- writing, or verbal contract, for the payment of negroes, produce, stock, 
cle hovv set- gQodg^ or other specific articles of any nature or kind whatsoever, the 
price of such specific article at the time it became due, upon such bond, 
note, or other instrument in writing, or verbal contract, as aforesaid, (and 
having respect to the place [tohere] made payable, according to contract, 
if any,) shall be the sole and established rule of valuation. And all and 
every such bond, note, or other instrument in writing, or verbal contract, 
for specific articles, as aforesaid, shall bear interest at eight [seven] per 
cent, from the time they become due ; in like manner as if given for the 
payment of money simply. Any law to the contrary notwithstanding. 

Note for Specific Article. 

Twelve months after date, I promise to pay John Doe or bearer, 
ten Cows and Calves ; for value received, this May 1, 1859. 

ElCHARD KOE. 

An Act to designate the Holidays to be observed in the acceptance and 
payment of Bills-of-Exchange and Promissory Notes ; and to disallow 
the three days commonly called the three days of grace, on all Sight- 
Drafts, or Bills-of-Exchange drawn payable at sight. — Approved Feb. 8, 
1850. 
Holidays not 272. Sec. I. Be it enacted., That the following days, namely — the first 
to be counted. ^2ij of January, commonly called N'ew Year's Day ; the fourth day of 
July; the twenty-fifth day of December, commonly called Christmas- 
day, and any day appointed or recommended by the Governor of the State 
of Georgia, Mayor of any City, or other municipal authority in said State, 
or the President of the United States, as a day of Fast or Thanksgiving, 
shall for all purposes whatsoever, as regards the presenting for payment or 
acceptance, and of protesting, and giving notice of the dishonor of any 
bill or bills-of-exchange, bank check or checks, and promissory note or 
notes, made after the passing of this act, be treated and considered, as is 
Days of Grace the first day of the week, commonly called Sunday. 

when not al- 273. Sec. II. Three days, commonly called the three days of grace, 
^^^^ * shall not be allowed upon any sight-drafts or bills-of-exchange, drawn 
payable at sight, after the passage of this act ; but the same shall be pay- 
able on presentation thereof, subject to the provisions of the first section 
of this act. 

Sec. III. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 



JUDIGIARy.— SPECIALTIES, BONDS, BILLS, ETC. 95 

BILLS- OF-EXCHANGE. 

An Act concerning Bills-of-Exchange. — Approved Dec. 19, 1823. 

2H. Whenever any bill-of-exchani!;e, hereafter to be drawn or negotiated ^^,„/^f5fJ^«o 

• i.i.fN /•• o • otin. cidmages 

MMthin this State, upon any person or persons or or in any fetate, territory, or on dishonored 

district, of the United States, shall be returned unpaid, and shall have been bills, in cer- 
duly protested for non-payment, in the manner usual in cases of foreign bills- *'^l"- cases, 
of-exchange, the person or persons to whom the same shall or may be pay- 
able, shall be entitled to recover and receive of and from the drawer or 
drawers; or the endorser or endorsers of such bill-of-exchange, five per cent, 
damages, over and above the principal sum for [whic/i] said bill-of-exchange 
shall have been drawn, together with hiwfal interest on the aggregate amount 
of such principal sum, from the time at which notice of such protest shall have 
been given, and the payment of the said principal sum and damages, shall have 
been demanded. — [jSee next Act. — A7id 278.] 

An Act to reduce the damages upon bills-of-exchange drawn on any place 
beyond the limits of the United States, returned protested for non-payment. 
And to define more precisely the mode of settling the same on the princi- 
ples of exchange. — Approved Dec. 24, 1827. 

W^hereas.^ the damages at present established by commercial custom and 
judicial decision in this State, upon foreign bills-of-exchange returned and pro- 
tested, are much too high. And whereas^ a doubt exists what is the legal mode 
of settlement; for remedy whereof — 

275. De it enacted, That on the bills-of-exchange drawn in this State after Foreign bills 
the thirty-first day of January next, upon any place beyond the limits of the being return- 
United States, which shall be returned protested for non-payment^ it shall be ed protested, 
lawful for the holder or holders thereof, to recover from those liable for the "^^"^'^ ™^y 
payment thereof, the amount of the said blU-of-exchange, with postages, pi'O- g^ry expenses, 
tests, other necessary expenses and interest upon the amount of these sums, 

from the date of the protest until the time of presenting the same for pay- 
ment in this State ; at the rate established at the place at which the bill 
was payable. And also, such premium upon the face of the bill and the And prem'm. 
foreign postages, protest and necessary expenses, as good bills-of-exchange 
upon the same place which [tohere^ such bill was made payable, or [are] 
worth, at the time and place of its demand, in this State. But if such bills 
are, then and there, at a discount, the holder shall deduct such discount upon 
and from the items of principal, foreign postage, protest and necessary 
expenses. 

276. Sec. II. It shall be lawful for the holder of such bill-of-exchange, so Damages may 
returned protested, as aforesaid, also to claim and receive from the person or be recovered, 
persons liable therefor, damages at the rate of ten per cent, upon the amount 

for which the said bill was drawn. 

277. Sec. III. It shall be lawful for the holder or holders of such bill or And interest, 
bills, returned protested, as aforesaid, to recover the legal interest established 

in this State, from the time of presentment for settlement until paid, upon the 
sum or sums to which he would be entitled by the before-mentioned mode of 
settlement. 

An Act to alter and amend an act concerning Bills-of Exchange, passed on the 
nineteenth December, 18p3. Approved, Dec. 21, 1839. 

278. Sec. I. JBe it enacted, Tnat all the provisions of said act, be and Act of 1823, 
they are hereby extended to all bills-of-exchange hereafter drawn, in this State, extended to 
upon or made payable \at'\ any place within the United States, out of this f^j' ^^^^^^ W^" 
State ; without reference to the residence of the drawer or acceptor. ^ State ^* 



96 JUmCIARY.— SPECIALTIES, BONDS, BILLS, ETC. 

Foreign Bill-of-E change. 

Perry, May 1, 1859. Exchange for $1,000. 

At two usances, (or at sight, or after date,) pay this my first Bill- of- 
Exchange, (second and third, of the same tenor and date, not paid,) to 
Messrs. Small & Wood, or order, (or bearer,) 07ie thousand dollars ; 
value received of them ; and place the same to account, as per advice 
from yours, &c., 

EiCHARD Roe. 
To Mr. fTohn Doe in Liverpool. 
Payable at Liverpool. 

Inland Bill of- Exchange. 

$1,000 Perry, May\ 1859. 

At sight, (or, on demand; or at ten days after sight; or, at ten daj^s 
afterdate,) pay to Mr. John Doe or order, (or, bearer,) one thousand dol- 
lars, for value received. 

Richard Roe. 
To Mr. James Short, Merchant 
in Savannah. Payable at Savannah. 

Check. 

Bank op State op Gteorgia, 
$1,000 Savannah, May 1, 1859. j' 

Pay to the order of John Doe, one thousand dollars. 

Richard Roe, Cashier. 
To the Cashier Planters^ Bank, Savannah. 



PROMISSORY NOTES. 
Joint Note. 

$1,000. Six months after date, we promise to pay Joh?i Doe, or bearer, 
one thousand dollars; for value received, this May 1, 1859. 

Richard Roe. 
John Stone. 

$1,000. Mght 7nonths after date, I promise to pay John Doe, or 
bearer, one thousand dollars \ for value received, this May 1, 1859. 

Richard Roe. 
John Stone. 

Joint a7id several Promissoiy Note. 

$1,000. Seven months after date, we or either of us, promise to pay 
John Doe, or bearer, one thousand dollars*; for value received this 
May 1, 1859. 

Richard Roe. 

John Stone. 



JUDICIARY.— SETS-OFF.— TESTIMONY. 97 

Promissory Note payable to order. 

$1,000. Two months after date, I promise to pay John Doe, or order, 
one thousand dollars ; for value received, this May 1, 1859. 

ElCHARD EOE. 

$1,000. Two tiionths after date, I promise to pay to the order of 
John Doe, one thousand dollars; for value received, this May 1, 1859. 

KiCHAKD KOE. 

Note — " Where the Note is payable to order, there must be a written endorsement 
by the Payee to vest the property in the Endorsee, and enable him to sue in his own 
name.'' 



SETS-OFF. 

279. Sec. XXIV. In all cases of mutual debts and sets-otf, where the ^ .f ^ 
jury shall find a balance for the defendant, such defendant may and shall be plead and 
enter up judgment for the amount, and take out execution in such manner allowed. 
as plaintiffs may do by this act : Provided^ such defendant shall at the 
time of filing his answer, also file therewith a true copy or copies of the 
subject-matter of such sets-off. And where the plaintiif shall be indebted 
to the defendant on open account for dealings between themselves, and 
where the defendant shall hold and possess in his own right, by assignment, 
endorsement or otherwise, according to law, any bond, note, bill or other 
writing, for money or other thing, of the said plaintiffs, such defendant shall 
and may offer the same as sets-off, and on due proof, shall be allowed the 
same. 



TESTIMONY. 

280. Sec. XIX. Where the attendance of any person shall be required Clerk must is- 
as a witness in any of the courts aforesaid, in any cause depending therein, ^"^ Subpoena, 
it shall be the duty of the clerks of the said courts respectively, on applica- 
tion, to issue writs of subpoena, directed to the persons whose attendance 

shall be required, where such persons reside within the county, in which 

such cause may be depending. Which writ of subpoena shall express the what the 

cause, and the party at whose suit it shall be issued. And shall be served Writ must ex- 

on such witnesses at least five days before the court to which it shall be press. 

returnable. And which writ shall be served bv a sheriff, constable or some ,^^^ ^^ °^"^* 

, *' ' . oe served 

private person. And the return of a sheriff or constable of such service, p^oof of ser- 

or the affidavit of any private person, shall be sufiScient evidence that such vice. 

subpoena was duly executed. p 

281. Sec. XX. Where it shall appear in manner aforesaid, that a wit- a^^ai^nst ^de- 
ness in any cause shall have been duly summoned, and such witness shall faulting Wit- 
fail to appear, it shall be the duty of the court, on motion, to issue an at- ness. 
tachment against such defaulting witness, returnable to the next court, and 

shall fine such witness in a sum not exceeding three hundred dollars, unless 
he or she shall make a sufficient excuse for such non-attendance, which Defaulting 
shall be judged of by the court; but shall nevertheless, be subject to the Witness liable 
action of the person at whose suit such witness shall have been summoned, for damages. 

7 



98 JUDICIARY.— TESTIMONY. 

for any damage which he, she or they, may have sustained by reason of 

such non-attendance. 

Mast attend 282. Sec. XXI. When a subpoena shall be served on any witness, in 

'till dis- ■ conformity to this act, it shall be the duty of such person so summoned, to 

charged, attend from time to time, until the cause in which such witness shall have 

been summoned, is tried, or be otherwise discharged by the court. 
Witnesses 283. Sec. XXII. On the last day of the attendance of any witness, in 
Fees and the ^^^^ term, it shall and may be lawful, on application of such witness, to ex- 
forcing pay- l^ibit his account for attendance, against the person or persons at whose 
ment. suit he or they may have been summoned; and the judge, or presiding 
justice, shall examine and certify the same under his hand, which shall be 
countersigned by the clerk ; whereupon, such account so certified, shall 
have the force and effect of an execution, and may be levied by the sheriff 
or constable, according to the amount thereof, off the goods and chattels 
Liability of of such j^arty, in like manner as in cases of other executions : Provided^ 
Witness nevertheless^ that where any witness shall claim and levy for more than is 
claiming too really due, such witness shall forfeit and pay to the party injured, four 
oSv^wo times the amount of the sum so unjustly claimed. And no party cast in 
Witnesses to any suit shall be taxed for more than the cost of two witnesses to any ma- 
material terial point in any cause, which shall be specially certified by the court try- 
point, i^g the same. Nor shall any party be allowed to tax costs for different 
witnesses to different material points, where the same witnesses shall be suffi- 
cient in the opinion of the court, to prove su(;h material points. — \_See 285.] 
Interrogate- 284. Sec. XXIII. Where any witness resides out of the State, or out 
ries may be of any county in which his testimony may be required, in any cause, it 
made out and g^all be lawful for either party, on giving at least, ten days' notice to the 
examine non- adverse party, or his, her or their attorney, accompanied with a copy of 
resident Wit- the interrogatories intended to be exhibited, to obtain a commission from 
ness. the clerk of the court, in which the same may be required, directed to 
certain commissioners, to examine all and every such witness or witnesses, 
on such interrogatories as the parties may exhibit. And such examination 
shall be read at the trial, on motion of either party. 

SuhpcBTia. 

STATE OF GEORGIA, ) ^ ^ t- . r • 7 /7 r>, - 

Houston County. [ ^0 James Lewis of said County— Greeting. 

You are hereby commanded, that laying all other business aside, you 
be and appear at the Superior GoMvt^ to be held in and for said County, 
on the fourth Monday in October next; then and there to be sworn as 
a witness for the Plaintiff, in the cause of John Doe against Richard 
Roe, in an action oi Assumpsit^ in said Court pending. Fail not under 
the penalty of the law. 

Witness^ the honorable Henry 0. Lamar^ Judge of said Court, this 
June 1, 1859. William H. Miller, Clerk. 

Affidavit on the hack of the Subpoena, 

STATE OF GEORGIA, ^ Jn person appeared before the undersigned, 
Houston County. j James Lewis, the Witness in said writ mentioned, 
-who after being sworn saith, that he attended Court six days in obe- 
^dience to this Subpoena. Amount duefour dollars Siudi fifty cents. 
Sworn to and subscribed ) 
before me, this October 30, 1859. \ JaMES LeWIS. 

James Mack, J. P. j 

Examined and approved— William H. Miller^ Clerk. 



JUDICIARY.—TESTIMONY. 99 

An Act to amend the laws of this State, pointing out the manner of col- 
lecting witnesses' fees for their attendance under Subpoena, in certain 
cases. — Approved Nov. 26, 1842. 

285. Sec. I. JBe it enacted^ That from and after the passage of this jud;?e not re- 
act, in the superior and inferior courts of this State, it shall not be neces- quired to sign 
sary for the judge or presiding justice to examine and sign the accounts Subpoena, 
of witnesses serving under subpoenas, as is now required by law, but the 

same being examined and signed by the clerk of such court, shall have the 
same force and effect as now directed by law. 

All lawfe and parts of laws militating against this act, be and the same 
are hereby repealed. 

An Act to enable parties litigant in the Superior and Inferior Courts of 
this State, to compel the production of written Testimony, when the 
same may be in the possession of persons not parties to the cause, and 
residing without the County where such cause is pending. And for 
other purposes.— ^ji9^rov6f? 2>ec. 19, 1829. 

'Whereas^ parties litigant in the Courts of this State, frequently suffer 
great inconvenience, and sometimes gross injustice, by reason of the diffi- 
culty of procuring written Testimony which may be necessary to the suc- 
cessful prosecution or defence of his cause, where the same happens to be 
in the possession of persons not parties to the cause, and residing without 
the County in which the cause is pending ; for remedy whereof — 

286. Be it enacted^ That from and after the passing of this act, when Papers in 
any deed, bond, note, or other writing, which it may be necessary to use hands of third 
as testimony in any cause which now is, or may be hereafter pending in persons may 
any of the superior or inferior courts of this State, maybe in the possession f required to 
of any person not a party to said cause, and not resident within the county \^ Court by 
in which said cause is pending, the clerk of the court in which said cause is Subpoena 
pending shall, upon the application of the party (or his attorney) desirous -Dwces Tecum. 
of procuring such testimony, issue a subpoena duces tecum., directed to the 

person having such deed, bond, note or other writing, in his possession, 
and requiring him to be and appear at the next term of said court, 
and to bring with him into said court, the- paper desired to be used as 
testimony. Which said subpoena duces tecum shall be served thirty days How served, 
before the court to which it is made returnable, by a sheriff, constable, or 
some private person. And the return of the sheriff, constable, of such 
service, or tlie affidavit of such private person, shall be sufficient evidence 
that the subpoena was duly served. 

287. Sec. II. When a subpoena shall be issued and served in terms of Person failing 
the first-section of this act, and the person whose attendance is thereby to attend, 
required shall fail to comply with the requisitions thereof, it shall be the by the Court 
duty of the court, on motion, to issue an attachment against such default- and sued by 
ing witness, returnable to the next term of said court, and shall fine su(,'h the party. 
Avitness in a sum not exceeding three hundred dollars, unless he or she 

shall make a sufficient excuse for si^h failure, which shall be judged of by 
the court ; but shall nevertheless be subject to the action of the person at 
whose suit such witness shall have been summoned, for any damage which 
he, she or they may have sustained by reason of such failure : Provided, reliev^h^^ 
nevertheless., that if the person so subpoened, shall within ten days after the self from lia- 
service of such subpoena, deliver to the party at whose instance the sub- bility. 
poena was sued out, or his attorney, or file in the office of the clerk of the 
court from which such subpoena issued, the paper, the production of which is 
required by such subpoena ; or shall deliver to the said party or his attor- 
ney ; or shall file in the said office his affidavit, that the said paper is not 



100 JUDICIARY.— TESTIMONY. 

in his power, custody, possession or control, nor was it at tlie time of 
serving said subpoena, then and in that case, such deUvery or filing of the 
paper so sought as aforesaid, or of such affidavit, shall be considered in 
full and complete compliance with the requisitions of such subpoena duces 
tecum. 
p , 288. Sec. III. In any case now pending, or which may hereafter be 

give parole vi-P^"^^^o ^^ *^^ superior or inferior courts of this State, where any party 
deuce of the shall pursue the course herein-before pointed out, but who is unable there- 
contents of by to procure such written instrument, such party shall be permitted to go 
paper sought, jj^^^^ parol evidence of the contents of such written instrument. 

Sec. IY. All laws and parts of laws militating against this act, are 
hereby repealed. 

Houston County. ' [ ^0 'Rafus Felder, of the County of Bibh— Greeting. 

You are hereby commanded and required, that laying all other busi- 
ness aside, you be and appear at the Superior Court to be held in and 
for the County aforesaid, on the fourth Monday in October next. And 
bring with you and produce in said Court [here set out the paper in the 
Witnesses possession, which the party desires to use on the trial, so that the 
witness may understand the object of the Writ.'] Which Deed of Convey- 
ance is in your possession, and which is intended to be used as evi- 
dence by the Plaintiff, in gyg action of Ujectmejit pending in said Court; 
in which action John Doe is Plaintiff and Richard Roe Defendant. 
Herein fail not. 

Witness, the honorable Henry G. Lamar, Judge of said Court, this 
June 1, 1859. William H. M ller, Clerh. 

Affidavit of the Witness. 

STATE OF GEORGIA, ) In person appeared before the undersigned, 
Houston County. j" J^ufus Felder, who after being sworn saith, in an- 
swer to a Subpoena Duces Tecum, this day served on him, that he has 
not now, nor had he in his possession at the time of the service of said 
Subpoena, [here set out the paper,'] nor is said Deed of Conveyance^ in his 
power, custody, possession, or control, in any manner whatever. 

Sworn to and subscribed, i 

before me, this June 1, 1859. > RUFUS FeLDER. 

James Webb, J. P. ) 

An Act to compensate persons who may be compelled to attend the 
Superior Courts of this State, as Witnesses in behalf of the State ; in 
Counties other than where such person or persons may reside. — Ap- 
proved Dec. 30, 1836. 
State's "Wit- 289. Sec. I. From and after the passage of this act, that any person or 
nesses to be persons who may be compelled, by subpoena or recognizance, to attend 
^^ho'w^^^ any of ^ the superior courts of this State, as a witness on the part of the 
State, in counties other than where such person or persons reside, shall 
receive for each day, while he or she may be in attendance on said court, 
the sum of two dollars ; and the like sum of two dollars for every thirty 
miles he, she or they may travel, in going to and returning from said court. 
Which said several sums shall be taxed in the bill of cost and paid for out 
of the county funds, in such county as the case may be pending, as soon as 
such case may be disposed of by said court. 



JUDICIARY.— TESTIMONY. 



101 



290. Sec. II. Any person or persons who may attend the superior 
courts as above dh'ected, shall be entitled to such pay as is therein 
stipulated, whether there be a conviction of the defendant or not, upon 
his making affidavit (before some judge of the superior, or justice of the 
inferior court, or justice of the peace,) to the number of days which he or 
she has been in attendance on said court, and the number of miles he or 
she will travel, in coming to and returning from said court. Which said 
affidavit must be signed by the presiding judge and countersigned by the 
clerk of said court ; and in that case it shall become a warrant on the 
county treasurer, or clerk of the inferior court of such county wherein the 
witness has been in attendance. 

291. Sec. III. Nothing herein contained shall be so construed as to 
prevent the cost being collected in the same manner as heretofore pointed 
out by law, from any defendant or defendants in State cases. 

292. Sec. IV. So much of said cost when collected, as has been paid 
out by the county treasurer, or the clerk of the inferior court, to witness 
or witnesses who may reside without the limits of such county, shall be 
paid over by the sheriff or clerk of the superior court, to such county 
treasurer or clerk of the inferior court as may have paid the same, and be 
applied to county purposes. 



Witness to be 
paid, whether 

party con- 
victed or not. 



Costs to be 

collected as 

usual. 

And refunded 
to County 
Treasury. 



Affidavit of the Witness, 

STATE OF GEORGIA, j In person appeared before the undersigned, 
ifowsfon County. \ John Doe of the County of Jones, in said State, 
who being sworn saith, that he attended the Superior Court of said 
County oi Houston, as a Witness on behalf of the State of Georgia, in 
the prosecution of Richard Roe for the crime of Murder, six days. And 
deponent further saith that he will have travelled, in coming to and 
returning from said Court, sixty miles. 
Amount due, $16 00. 

Sworn to and subscribed, ) 

before me, this April 25, 1859. > JOHN DOE. 

James Mack, J. P. ) 

Examined and approved — William H. Miller^ Clerh. 



An Act to remove all disabilities whatever from persons in this State 
from Testifying in any of the Courts thereof; or having their oath or 
affirmation, where the same is necessary to secure any right or interest 
whatever, by reason of any Religious Opinion he, she or they may 
entertain or express. — Approved Dec. 11, 1841. 
293. Sec. I. JBe it enacted, That from and immediately after the 



Religious 



passage of this act, no person shall be excluded from testifying as a witness ,^Pj"^^°^^^: 
in any of the courts of law or equity in this State; or deprived of his, her|3j2j|.„ ^f -^jt] 
or their oath or affirmation, touching any matter or thing where an oath ness, not to 
or affirmation is necessary to secure any right or interest whatsoever, by competency, 
reason of any religious opinion such person or persons may entertain or 
express: Provided, nothing in this act shall prohibit such disabilities 
going in evidence to the jury, to affect the credit of such witness or 
witnesses. 



An Act for the ease of Dissenting Protestants within this Province who 
may be scrupulous of taking an Oath, in respect to the manner and form 

-Approved Dec. 13, 1756. 



of administering the same.- 



102 JUDICIARY.— TESTIMONY. 

TF/iereaSy many inconveniences may arise in this Province, through the 
scruples of divers Protestant Dissenters within the same, of good estates 
and abilities, who refuse to take an oath by laying their hand on the Holy 
Evangelists, whereby the public is deprived of their services as Jurymen. 
And ichereas^ acts of toleration and indulgence to Protestant Dissenters 
have been found of beneficial tendency to other his Majesty's Provinces, and 
may in a particular manner, be so to this infant Province. In order that 
such dissenting Protestants may be enabled and compelled to serve on all 
Juries, and to give Evidence in all cases, and that the acts of such Prot- 
estant Dissenters may be valid and effectual, in respect of the manner 
and form of takino- and administering; oaths — 
An Affirma- ^9^- ^^ ^^ enacted^ that immediately after passing of this act, any 
tion as valid person w^ho shall appear in any of the courts of judicature, or before any 
as an oath, judge or magistrate in this Province, either as juror, witness, party or 
otherwise, in any cause, civil or criminal, and shall make and distinctly 
repeat a solemn and conscientious declaration and affirmation (according 
to the form of his profession), in any matter, cause or thing, wherein an 
Form of AfiQr- oath is required by law, in the following words : "I, A B, do swear 
matlon. \yi the presence of Almighty God, as I shall answer at the great and 
awful day of judgment, that, (as the case may be) — so help me God." 
And such solemn and conscientious declaration and affirmation shall be 
deemed, held, adjudged and taken to be valid and effectual, to all intents, 
constructions and purposes whatsoever, in the same manner as if such person 
Perjury if ^^^d taken an oath on the holy evangelists of Almighty God. And that 
false. all and every such person and persons as shall be convicted of falsely and 
corruptly affirming and declaring any matter or thing, which (if the same 
had been an oath taken on the holy evangelists,) would by law amount to 
wilful and corrupt perjury, shall incur the same penalties, disabilities and 
forfeitures, as persons convicted of wilful perjury do incur by the laws of 
Great Britain. 

An Act to alter and amend the XXIIId section of the Judiciary Law of 

this State, passed February 16, 1799. — Approved Dec. 16, 1811. 

Whereas, the Judiciary Law of this State does not fully embrace the mode 

necessary to procure Testimony by Interrogatories, as justice in its fullest 

extent requires — 

Certain Wit- ^^'^- ^^ ^^ enacted^ clbc, That after the passing of this act, it shall and 

nesses, al- may be lawful where any witness resides out of the State or out of the county, 

though they or where any witness resides within the same, and being a seaman, patroon of 

reside in the ^ boat, stage-driver, mail-carrier, aged or infirm person, [see 301,1 and in all 
bounty, may . i ^ i , . ^ t^ . ^ i t i -• i . i . 

be examined ^^"^''^^ cases where the evidence or any witness cannot be duly obtained in 

by Interroga- which his or her testimony may be required in any case, it shall be lawful for 

tories. either party, on giving at least ten days' notice to the adverse party, or his, her or 

their attorney, accompanied with a copy of the interrogatories intended to be 

exhibited, to obtain a commission from the clerk of the court in which the 

same may be required, directed to certain commissioners, to examine all and 

every such witness or witnesses, on such interrogatories as the parties may 

exhibit ; and such examination shall be read on the trial, on the motion of 

either party. Any rule, order or law to the contrary notwithstanding. 

An Act to carry into effect the Penal Code of this State, and the Penitentiary 

System founded thereon. — Approved Dec. 19, 1816. 

Convicts may 296. Sec. XXI. of the rules. — Where any convict confined in the peni- 

be examined tentiary, is a witness in any civil cause, depending in any court of this State, 

^° sion°^^^' ^"^ ^^^ testimony required, the same shall be taken by commission, and read 



JUDICIARY.— TESTIMONY. 103 

at the trial of such civil cause. And in no civil case shall such convict be 
removed from the penitentiary to give personal attendance at court. But 
before such cominission issues, the party, or his or her attorney, requiring 
such commission, shall file an affidavit, with the record of the proceedings, 
that the convict to be examined is a material witness in the cause. 

Affidavit of the Party Applijingfor the Commission. 

STATE OF GEOKGIA, ) In person appeared before the undersigned, 
Eou&ton Co\xi\iy . \ John Doe^ who after being sworn saitb, that be 
hatb commenced bis action of Assumpsit in the Superior Court of said 
County, against Richard Roe. That said action is now pending in said 
Court, and that Char-Ies Smith, a convict in tbe Penitentiary, is a 
material witness for deponent in said action. And that deponent 
desires to take the Testimony of said Charles Smith by Commission, 
according to the statute in such case made and provided. 

Sworn to and subscribed, "] JOHN DoE. 

before me, this May 1, 1859. [ 

Simpson Moore, J. P. \ 

An Act to regulate the mode of taking Testimony by Commission and de 
bene esse, within this State. And to alter and amend the several laws i-e- 
lating thereto. — Approved Dec. 2Q, 1823. 

297. The act entitled "an act the more effectually to insure the testimony 
of witnesses going beyond seas, or removing without the jurisdiction of the 
State, and aged and infirm persons," passed the 8th day of December, 1806, 
be and the same is hereby re-enacted and declared to be operative and effec- 
tual, in all cases pending or which may be brought in the several courts of 
this State. — [See 301 for the act revived.'] 

298. Sec. II. In all cases which are or shall be pending in any of the 

courts of this State, when any one person is the only witness to any material Act of 1806 
fact in any case, it shall and may be lawful to examine such witness de bene revived. 
esse, on complying with the provisions of the aforesaid act; in so far as the i^^^^^^^J^^-^q^ 
same are applicable to such case. And that the examination so taken shall be allowed, 
read in evidence in such cause, on the terms and under the restrictions specified 
in said act. 

Sec. III. All laws and parts of laws militating against this act, are hereby 
repealed. 

An Act to point out and regulate the manner of taking the Testimony of 
Females, in certain cases. — Approved Dec. 19, 1829. 

299. From and after the passage of this act, when the testimony of any Females may 
female shall or may be required in any of the superior or inferior courts which be examined 
may be^held in this State, criminal cases only excepted, it shall and may be J^'^ i™dvU 
lawful for either party, on giving at least ten days' notice to the adverse ' Jases. 
party, or his, or her, or their attorney, accompanied with a copy of the inter- 
rogatories intended to be exhibited, to obtain a commission from the clerk of 

the court in which the same may be required, directed to certain commission- 
ers, to examine all and every such witness or witnesses on such interrogatories 
as the parties may exhibit. And such examination shall be read at the trial, 
on moti(Ui of either party. — \^And see 301.] 

300. Sec. II. If any person, as above-recited, shall refuse to appear before Witness refus- 
commissioners appointed to take her or their examination ; or appearing, ^"^ *P appear 
shall refuse to answer such legal interrogatories as shall be annexed to 

said commission, and exhibited to her or them, it shall be lawful for either 



104 JUDICIARY.— TESTIMONY. 

of said commissioners, or the party upon whose application the said com- 
mission was issued, to proceed in conformity to the laws now in force, 
pointing out the mode of proceeding in cases of failure or. refusal to attend 
or answer interrogatories, in other cases. — [/See 302.] 

Sec. III. All laws or parts of laws militating against the above-recited 
act, are hereby repealed. 

Aisr Act to amend " an act to regulate the mode of taking Testimony by 
Commission and de hene esse, within this State. And to alter and 
amend the several laws relating thereto," approved 20th December, 
182^.— Approved Dec. 28, 1838. 
Act of 1806 301. Sec. I. J^e it enacted, That the act (for which this is amendatory) 
revived and niore effectually to insure the testimony of witnesses going beyond sea, 
amen e . ^^^^ aged and infirm persons, passed on the 8th day of April, 1806, which 
had been repealed, and again re-enacted and declared to be operative and 
effective, in all cases pending or which may be brought in the several 
courts of this State, by act of 20th December, 1823, be amended [so] as 
to read as follows, to wit : That in case either plaintiff or defendant may 
Certain Wit- deem any witness or witnesses, material in any cause or causes pending in 
nesses may be ^ny of the courts of law and equity of this State, and who are going 
cSmnission^ beyond seas, removing without the county, or beyond the jurisdiction of 
the State, or whose official or other business, would require his absence 
from the county, at the term of trial of said cause, or from age or other 
bodily infirmity, may be unable to attend court, it shall and may be lawful 
to examine any such witness or witnesses under commission, or \_07i] serv- 
ing and filing interrogatories, in the manner prescribed by law, in cases 
where witnesses reside out of the county : Promded, that in case the per- 
son or persons whose testimony shall have been taken, return or be able 
to attend, that then and in that case, such written testimony shall not be 
received or read. — [See 307.] 

Sec. II. All laws, or parts, or amendments of laws militating against 
this amendatory act, be and the same are hereby repealed. 

.k^ Act to point out and regulate the manner of taking Testimony by 
Commissioners, in certain cases. — Approved Dec. 22, 1840. 
Witness fail- 302. Sec. I. Be it enacted, That when any witness shall fail, refuse or 
ingto ^^^.^'J^^ neglect, to appear before commissioners for the purpose of answering in- 
ers, what may terrogatories appended to a commission issuing from any court in this 
be done. State, in which court the case may be pending, for which said interroga- 
tories are intended to be taken ; upon the application of the commissioners 
therein named, it shall and may be lawful for the party at whose instance 
said interrogatories are to be taken, his, her or their attorney, or for 
either of the commissioners, to make affidavit of such failure, refusal or 
neglect. And upon application made to any judge of the superior, or 
justice of the inferior court, of any circuit or county in which said witness 
may be when ajDplied to, to be examined, accompanied with such affidavit, 
[for such judge or justice,^ to issue an order, to all and singular, the 
sheriffs, constables and coroners of this State, commanding them to bring 
said witness before him. And upon such judge or justice being satisfied 
Order of of the legality of such interrogatories, it shall be the duty of such judge 
Judge. or justice to order the officer having said witness in custody, to deliver 
said witness to the jailer of such county, and to be by said jailer confined 
in the common jail of said county, until he or she shall answer the inter- 
rogatories propounded to him or her, to said commission attached. 

303. Sec. II. Nothing herein contained shall be so construed as to 



JUDICIARY.— TESTIMONY. 105 

prevent the court from which said commission issued, from punishing Witness pun- 
said witness for contempt of said court. And that all laws and parts of ishable for 
laws militating against this act, be and the same are hereby repealed. contemp . 

Party^s Affidavit. 

STATE OF GEORGIA, j Jn person appeared before the undersigned, 
Houston County. j" John Doe, who after being sworn saith, that he 
has commenced his action of Assumpsit in the Superior Court of the 
County o^ Bibb, in said State, against Richard Roe, which action is now 
pending in said Court. That a Commission with certain Interroga- 
tories thereunto annexed, issued from said Court, in conformity to law, 
to take the Testimony of Charles jSmith, of the County of Houston, a 
material Witness in said case, on the part of deponent. That said 
Commission has been presented to tTamesWest and John Jones as Com- 
missioners. That said Commissioners have required the personal at- 
tendance of said Charles Smith in order that his testimony might be 
taken ; but said Charles Smith, without any legal excuse, fails, (refuses 
or neglects, as the case may be,) to appear before said Commissioners 
for the purpose aforesaid. 

Sworn to and subscribed. ^ 

before me, this May 1, 1859. >• JOHN DOE. 

James Mack, J P. j 

Order of the Judge. 

Chambers, May 1, 1859. 
STATE OF GEORGIA, | J'q all and singular, the Sheriffs, Constables, and 

Houston County. ^ Coroners of said State. 

Whereas, I have been informed by the affidavit oi John Doe, that he 
has commenced his action of Assumpsit, in the Superior Court of the 
County oi Bibb agairst Richard Roe, which action is now pending in 
said Court. That a Commission with certain Interrogatories thereunto 
annexed, issued from said Superior Court of the County of Bibb, in con- 
formity to law, to take the Testimony of Charles Smith, of the County 
of Houston, a material Witness in said case, for the deponent. That 
said Commission has been presented to JamesWest and John Jones as 
Commissioners. That said Commissioners have required the personal 
attendance of said Charles Smith, in order that his Testimony might 
be taken, but that said Charles Smith, without legal excuse, 7^275 to 
appear before said Commissioners for the purpose aforesaid : you and 
each of you are therefore, hereby commanded, to arrest the body of 
the said Charles Smith and bring him before me at Perry in said County, 
by ten o'clock of the forenoon of the second instant, that he may be dealt, 
with as the law directs. Herein fail not. 

Given under my hand and official signature, 

Henry G. Lamar, J. S. C. M. D, 

An Act to make valid all Commissions which have heretofore been, or 
may hereafter be issued in Blank, for the purpose of taking Testimony 
in any case arising, or which may have arisen in the Courts of Law and 
Equity of this State. — Approved Feb. 13, 1850. 
304. Sec. I. Be it enacted^ That from and after the passage of this act, 



106 . JUDICIARY.— TESTIMONY. 

Commissions all commissions which have heretofore been, or may hereafter be issued in 

may issue la blank, for the purpose of taking testimony, in any case pending, or arising 

i3iank. ^j^ ^i^g courts of law and equity in this State, shall be valid and as effectual 

as if the names of the commissioners had been inserted by the officer 

issuing the same. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to regulate the taking of Testimony by Interrogatories, for the 
Courts of this State. And to amend an act entitled " an act to author- 
ize parties to compel Discoveries, at common law," approved December 
17th, 1M7.— Approved Mb. 2?y,lS50. # 

Commissions 305^ gj^Q^ J J^^ n enacted, That in all cases in the superior and 
*^%r^k^ ^^ inferior courts of this State, where it may become necessary to take tes- 
timony by interrogatories as heretofore practised, commissions may issue 
in blank, in so far as relates to the names of the commissioners ; but the 
names of witnesses intended to be examined, shall be distinctly specified 
in the notice served upon the adverse party, preparatory to issuing the 
commission. 
Discovery at 306, Sec. II. When any person, either plaintiff or defendant, shall 
common law. ^ggj^^.g ^q ^}g \^\^^ \^q^ qj. their written interrogatories, for the purpose of 
compelling the discovery contemplated by the act entitled " an act to 
authorize parties to compel discoveries at common law," approved Dec. 
ITth, 1847, he, she or they shall be authorized to do so either in term- 
time or vacation of the suj^erior or inferior court, and obtain an order from 
a judge of said court, requiring the adverse party to answer the same in 
writing, according to the provisions of the act of which this is amenda- 
tory.— [;See 317.] 

An Act to amend the act of eighteen hundred and thirty-eight, regulating 
the taking Testimony in certain cases. — Approved Jan. 5, 1852. 
Evidence of 307. Sec. I. JBe it enacted. That in addition to the cases already speci- 
single Witness fied in the act assented to twenty-eighth of December, eighteen hundred 

may be taken ^^^ thirtv-eio-ht, the party plaintiff or defendant, where he has but a single 

Dv wlnterrosra- « .1 ~ ' i. j i. ^ 1 ^ o^ 

tories. witness to prove any particular point, or fact, in his case, may take his 

testimony by commission, exactly as in cases provided for by said act of 

eighteen hundred and thirty-eight, w^ith the restrictions and limitations 

therein set forth. — \See next Act.~\ 

An Act for the Perpetuation of Testimony in certain cases. — Approved 
March 5, 1856, 

Whereas, the present mode of Perpetuating Testimony in suits which 
cannot be commenced, is both costly and difficult of application ; for remedy 
whereof — 
Mode of Per- 308. Sec. I. J5e it enacted, t&c. Whenever any j^erson desiring to per- 
petuating Ev-petuate testimony for a suit which cannot on any account, be .commenced 
idence. -j^ ^^-^^ ^Qurt of this State, shall make written application to any judge of 
Application the superior court of this State, stating the grounds of the application, the 
Judae's^Or- ^^^^^ expected to be proved and by whom, said judge shall pass an order, 
der. endorsed on said application, requiring the clerk of the superior court of 
Commis- ^^® county where the witness resides, to issue a commission directed to 
sioner. ^^J attorney-at-law^, [jiot i7itcrested,^ in the usual form, to examine said 
witness upon the interrogatories filed by the applicant and the opposite 
party, should the latter file any. Which commission is not to issue how- 
ever, until the applicant has given the opposite party five days' notice. 



JUDICIARY.— TESTIMONY. 107 

and served him with a copy of the interrogatories filed in the clerk's office, Notice must 
as aforesaid. Which opposite party shall have the like privileges, if he ^e given, 
desires, of filing cross-interrogatories, with said clerk. All of which direct interrogato- 
and cross-interrogatories, if filed, are to be attached to the commission ries may be 
before delivery by the clerk to the party applying. But if the opposite Crossed, 
party fails to file any cross-interrogatories, the applicant shall not be there- 
by delayed or deprived of the commission. 

309. Sec. II. The said commissioner shall, after executing said com- Commission 
mission in the usual manner, return it to the clerk of the superior court how returned, 
from whence the commission issued, in the mode now in use for returning 
commissions, who shall when he receives the same, after using the usual 
precautions and regulations, as to the correct delivery of the same, safely 

file the same away in a secure place, to be produced by him for publica- 
tion whenever ordered so to do, by any proper tribunal. 

310. Sec. III. The commissioner shall receive for his fee, before de- FeesofCom- 
livering up the papers, the sum of five dollars; and the clerk, before issu- missioner and 
ing the commission, shall receive the usual fee. Clerk. 

311. Sec. IV. The testimony so taken shall be of the same force and^<^r<^.^ ^^ Tes- 
efiect, and used in the same way, as if it had been taken under a bill in u^iony. 
equity, filed for that purpose. 

312. Sec. V. The clerk aforesaid, shall file away the written applica- Papers must 
tion and order, after entering the same on the minutes of the court, with he filed away, 
the commission, when returned. 

313. Sec. YI. In case the witness proposed to be examined, resides Where Wit. 
out of the State, then the commission shall be issued by the clerk of the ^f ?^^^cw* 
superior court of that county where the party making the application shall 

reside. 

Application of Party, 

STATE OF GEOEGIA, | Tq the honorable Henry G. Lamar ^ Judge of the 
Houston County. j" Superior Courts of the Macon District. 

The application of John Doe showeth, that Richard Roe^ late of said 
County, did, in his lifetime, and just before his death, commit Tres- 
pass on the Real Property of Applicant, whereby an action has 
accrued to Applicant. That said Richard Roe departed this life on 
i\\Q first day of May^ eighteen hundred and fifty-nine^ and, therefore, 
Applicant cannot commence his action for the Trespass aforesaid. 
Applicant expects to prove by Charles /Smith, of said county, that 
said Richard Roe entered upon Land of Applicant, to wit, lot of Land 
nnmhei forty-nine, in the tenth district of said County, on the twentieth 
day of April, eighteen hundred and fifty-nine, and cut down and 
removed away from said lot of Land, a large number, to wit, one 
hundred Trees, which Trees were of the value of two hundred dollars. 
Wherefore, Applicant prays your honor to issue an order directed to 
William EI. Miller, Esq., Clerk of the Superior Court of said County, 
requiring him to issue a Commission to such Commissioner as your 
honor may appoint, that said Charles Smith may be examined upon 
Interrogatories filed by Applicant, in order that the Testimony of 
said Charles Smith may be perpetuated, according to the statue in 
such case made and provided. This May 10, 1859. 

Thomas Felder, Applies Atfy. 



108 JUDICIARY.— TESTIMONY. 

Order of the Judge. 

STATE OF GEOKGIA, ) To William H. Miller, Clerh of the Superior Court 
Bibb County. j qJ" Houston County — Greeting. 

Whereas, by the within application of John Doe, I am informed 
that the Applicant has a good cause of action against the estate of 
Richard Roe, deceased, late of said County, which action cannot, on 
any account, be commenced in any Court of this State. And, whereas, 
by said Application I am informed that Charles Sr)iith is a material 
witness for the Applicant, to prove the facts necessary to support said 
action, when it can be instituted. You are, therefore, hereby directed 
to issue a Commission, directed to John M. Giles, Esq., Attorney-at- 
Law, authorizing him to examine said Charles Smith upon certain 
Interrogatories filed in your office by the Applicant. And after the 
examination of said Witness, said Commissioner is required to deposit 
the Packet in the Clerk's office. And you, the said Clerk, will 
receive and safely keep said Packet, until you are required to produce 
it, according^ to law. 

Given under my hand and official signature, at Chambers, this May 11, 
1859. 

Henry Gr. Lamar, J. S. C. M. D. 

An Act for pointing out the method of Compelling persons residing in this 
State, to give Evidence in causes pending in another.- — Approved Dec. 16, 
1794. 

Whereas, much inconvenience has arisen to individuals, from no compul- 
sory process having been adopted in the different States, to oblige the citizens 
or residents thereof, to give evidence in suits pending in other States ; for 
remedy whereof, as far as it might be occasioned by persons residing within the 
State of Georgia — 
Wt s 'n ^^^- Sec. I. De it enacted, That if the testimony of any persons residing 
this State within the said State shall be required in any suit pending in any court of 
must testify record in either of the United States, and he, she or they, shall refuse to ap- 
in cases pend- pear before commissioners appointed to take his or her examination, under a 
ingmanotner. commission properly issued and authenticated, agreeably to the laws and rules 
of the courts of the State from which it shall be sent; or appearing, shall re- 
"When lie re- ^^^® *^ answer to such legal interrogatories as shall be annexed to the said 
fuses what commission and. exhibited to him, her or them, it shall be lawful for either of 
may be done, the said commissioners, or the party upon whose application the said commission 
was issued, to apply to any judge of the superior courts oi this State, or 
justice of the inferior court of the county, within which such person whose 
testimony is required may reside, and upon producing before him such com- 
mission, and his being satisfied of its regularity, and on affidavit being made of 
such refusal, he shall issue a subpoena in the usual form, directed to such per- 
son or persons as aforesaid, requiring him, her or them, to be and appear 
before the said comn>issioners, at a certain time and place, to answer to such 
legal interrogatories as may be annexed to the said commission, and then ex- 
When and hibited to him : Provided, that he shall not be required to attend such 
where he must examination and give answer to the said interrogatories, within less than two 
attend. days after the service of the said subpoena, neither shall he be obliged to 
attend for such examination out of the county where he resides, nor more than 
ten miles from the place of his residence. And upon due service of the said 
subpoena upon such person or persons, the same shall be returned to the com- 
missioners on or before the time appointed for the examination and the service 



JUDICIARY.— TESTIMONY. 109 

of such subpoena, proven by the return of the proper officer. And on the 
refusal or neglect of such person or persons to comply with its mandate, in- 
dorsed on or annexed to the said subpoena, and returned to the superior or 
inferior court, as the case may require, of the county in which such person or 
persons reside, he, she or they, shall be subject for such neglect or refusal, to 
all the pains and penalties to which such person or persons would have been 
subject for a similar default in any cases pending in the courts of this State. 

315. Sec. IL The person or persons whose evidence shall be required as Witness enti- 
aforesaid, shall if they or any of them shall require the same, be entitled to the *^^*^ *^ P^^^- 
same fees or pay, as persons summoned to give evidence in the superior or 

inferior courts of this State. — [And see next Act.^ 

An Act to extend the operation of the act passed on the 16th day of De- 
cember, 1794, entitled "an act for pointing out the method of compelling 
persons residing in this State, to give Evidence in causes pending in another." 
— Approved Bee. 21, 1839. 

316. Sec, I. That all the provisions of the said recited act, be and the Witness in 
same are hereby extended to the cases of the persons who may refuse to ap- *.^^^ State to 
pear before the commissioners and give evidence under commissions issued ^^^^ '^°^' 
from any of the counties of this State. 

Affidavit of the Party, 

STATE OF GEORGIA, | In person appeared before the undersigned, 
Houston County. j" John Doe, who, after being duly sworn, saith, that 
he has commenced, in the Court of Common Pleas of the State of 
South Carolina, Chesterfield District, his action of Assumpsit against 
Richard Roe, and that said action is now pending in said Court. 
That Charles Smith, of the County and State first aforesaid, is a 
material Witness for deponent, in said action of Assumpsit That a 
Commission to take Evidence (having certain Interrogatories there- 
unto annexed,) in legal and proper form, agreeably to the laws of 
South Carolina, issued in said case, to take the Testimony of said 
Charles Smith. That said Commission has been presented to John 
West and John Jones, Commissioners, who have required the personal 
attendance of said Charles Smith, in order that bis Testimony might 
be taken ; but that said Witness, without any legal excuse, refuses 
(or neglects, as the case may be,) to attend upon said Commissioners 
for the purpose aforesaid. 

Sworn to and subscribed, ] JOHN DOE 

before me, tbis May 1, 1859. >• 
John Ragin, J. I. 0. ) 

Subpoena by the Judge. 

STATE OF GEORGIA, \ To Charles Smith, of the County of Houston, 
Bibb County. j" You are hereby required, that laying all other 
business aside, you be and appear before John West and John Jones, 
Commissioners, by ten o'clock in the forenoon of the Vlth instant, in 
the town of Perry, in said County of Houston, then and there to be 
sworn, and to make true and full Answers to certain Interrogatories, 
then and there to be exhibited to you. Evidence to be used in an 
action of Assumpsit pending in the Court of Common Pleas^ of Chester' 



110 JUDICIAEY.— TESTIMONY. 

field District^ South Carolina, in whicli action John Doe is plaintiff and 
Richard Roe defendant. Fail not. 

Given under my hand and official signature^ at Chambers^ this May 1, 
1859. 

Henry G. Lamar, J. S. C. M. D. 

An Act to authorize Parties to compel discoveries at Common Law. — Ap- 
proved Dec. 17, 1847. 

317. Sec. I. JBe it enacted, That from and after the passage of this act, 
Discovery al- that any party, plaintiff or defendant in any action at common law, pending 
lowed at com. \^ .^wy superior or inferior court of this State, wishing a discovery from the 

^3!.'o-aLr!icf^" adverse party, to be used in evidence at the trial of such action, may file 
written mterrogatories \_airectea\ to such party, and call upon him to answer 
the same in solemn form, on oath or affirmation. And if upon such interrog- 
Order by the stories being filed, it shall appear to the court, by the oath of the party filing 
the Judge, the same, or otherwise, that answers to such interrogatories will be material 
evidence in the cause, and that the interrogatories themselves are pertinent, 
and such as the adverse party would be bound to answer upon a bill of discov- 
ery in a court of chancery, the court shall allow such interrogatories, and shall 
make an order, [see 322,] requiring the adverse party to answer the same in 
writing, and in solemn form, on his oath or afl^irmation. And the answer to 
Answer made such interrogatories being so given and filed, shall be evidence at the trial of 
Evidence, ^^j^^ cause, in the same manner, and to the same purpose and extent, and upon 
the same condition in all respects, as if the same had been procured upon a 
bill in chancery for discovery, but no further or otherwise. And if the party 
Party failing to whom interrogatories shall be so propounded, and who shall be so required by 
to answermay the court to answer the same, shall in sixty days after notice and copy of such 
ue attacaed. interrogatories served on him, fail to make answer in manner aforesaid, or 
shall answer the same evasively, the court may attach him and compel him to 
answer in open court, or it may continue the cause and require more direct 
and explicit answers. Or, if the party to whom such interrogatories shall be 
Suitor de- propounded, be dependant in the action, it may set aside his plea or pleas and 
fence may be give judgment against him by default. Or, if the plaintiff*, may order his suit 
dismissed. j.q j^q dismissed with cost; as shall in the discretion of the court, be deemed 
most just and proper. Provided^ that nothing in this act contained, shall 
Partymay fileP''^'^^^^® ^'V P^^'^^J ^^ ^^^^^ action, from exhibiting his bill in chancery for dis- 
BIll. covery, touching the same matters. — \_8ee next Act. — And see 325, <&c?[ 

An Act amendatory of an act assented to on the 17th December, 1847, en- 
titled "an act to authorize parties to compel Discoveries at Common Law." 
—Approved Feb. 23. 1850. 

318. Sec. I. Be it enacted, That from and after the passage of this act, 
OrderofJ'dge whenever any party, plaintiff* or defendant, in any action at common law, 

in vacation, pending in any superior or inferior court of this State, shall wish to avail him- 
self or herself of the provisions of the act assented to on the 17th December, 
1847, entitled "an act to authorize parties to compel Discoveries at common 
law," it shall and may be lawful for such party to make out and present his 
or her interrogatories to the court in which such action is or may be pending, 
to the judge of the superior court, or a justice of the inferior court, in vacation. 
And when such interrogatories are presented in vacation, and are allowed by 
such judge or justice, the said judge or justice shall make and grant an order, re- 
quiring the adverse party to answer the same in writing, in solemn form, on 
oath or affirmation. Which order, together with said interrogatories, shall be 
returned to the clerk of the court in which such action is pending, and shall be 
filed in his office. And the said order shall be as good and effectual to compel 



JUDICIARY.— TESTIMONY. Ill 

the discovery sought for, as if the same had been granted in court. Any law, 
usage or custom, to the contrary notwithstanding. 

319. Sec. II. When the plaintiff in any cause shall reside out of the county 

in which the action may be pending, a service of a copy of said interrogatories Non-resident 
and order upon the attorney of the plaintiff, shall be sufficient service on such ^^" ^ , ®^ 
plaintiff. 

320. Sec. III. The provisions of the act amended by this act, and of this 

act, shall be applicable to the court of Common Pleas of the city of Augusta, Extended to 
and the court of Common Pleas and Oyer and Terminer of the city of Sa- City Courts, 
van n ah. 

321. Sec. IV. Where it shall be m.ade to appear to the court, that the time 

allowed for the answer to the interrogatories to come in, shall from any cause, '^^™® *® ^°' 
not be sufficient, the court may allow such further time as the circumstances of 
the case may require. — [^And see next Act.'] 

Order of the Judge, or Justice. 

JOHN DOE \ Assumpsit in Houston Superior Court, returnable to 
^*- V the October Term, 1859. 

KICHARD ROE. J Whereas, it has been made to appear to me, by the 
oatlb of the Defendant, in the above cause, that be has filed in the Clerk's 
office of said Court, Interrogatories to be propounded to the Plaintiff. 
And it appearing to me that the Answers to said Interrogatories will be 
material Evidence on tbe trial of the cause ; that the Interrogatories 
themselves are pertinent, and sucb as the Plaintiff would be bound to 
Answer upon a Bill of Discovery in a Court of Chancery. There- 
fore, it is hereby ordered, that the Plaintiff, above-named, be and be 
is hereby required and directed, to Answer said Interrogatories, so 
filed as aforesaid, fully, correctly and in solemn form, on his oath or 
affirmation, within sixty days from the date of this order. 

Given under my hand and official signature, in Chambers^ this August 
10, 1859. 

Henry Gr. Lamar, J. S. C. M. D. 

An Act to amend an act passed the ITth of December, 1847, to authorize 
parties to compel discoveries at common law. Approved Feb. 20, 1854. 

322. Sec. 1. JBe it enacted, That from and after the passage of this act, 

the following shall be an additional section of said act, to wit : Any party, ^^^ ^^ 3^347 
plaintiff or defendant, in any action at common law, pending in any supe- amended, 
rior, inferior or justices' courts of this State, wishing a discovery from, or 
on the evidence of the adverse party on the trial of such action, may ap- 
ply to the clerk of said superior or inferior courts, or to the justices of the 
peace in w^hose courts said action may be pending, in case the party whose 
evidence is desired, resides in the county where said case is pending, for a 
subpoena, requiring said party to be and appear at said court and testify in 
said action, as other witnesses now by law are required to do. Which Party ma}^ be 
subpoena shall be personally served thirty days before the term of the court subpoenaed, 
at wdiich he is required to attend. And in case said party shall fail or re- 
fuse to be and appear, and testify in said action as required, then and in Continuance 
that case said cause shall be subject to the fame continuances as are now allowed, 
allowed by law, for the absence or non-attendance of other witnesses ; 
and after said continuances are exhausted, said action shall be dismissed. 
Prodded, it be the plaintiff who refuses to appear and testify as aforesaid. 
Or, if the party who fails or refuses to be and appear as aforesaid, be the 



112 JUDICIARY.— TESTIMONY. 

Party refus- defendant in said cause, his plea or pleas and answers, [ans2oer,] if he has 
ing to attend, filed any, shall be stricken out and judgment given against him by default, 
suit or answer Qj. ^^q\-^ other order may be taken and had in said cause, as in the discre- 

TO DC QlSmiS Q • • • • • 

■ tion of said court may be just and proper. And in the event said parties, 

Party remov- plaintiff or defendant, whose evidence or discovery may be required in any 

ing, what to action pending in either of said courts, shall or may, either before, at the 

be done, time or after the commencement of said action, and before the time of 

giving in said testimony, remove or do reside out of said county in which 

said action is pending, then and in that case interrogatories may be filed 

as is now usual for other witnesses under the same rules and regulations, 

as is now required by law. And in case of a refusal or failure to answer 

Party must the same ; or in case they are answered evasively, the same rule or order 

answer fully, may and shall be had as herein-before provided in case of failure or refusal 

to attend and answer where said parties are subpoenaed to attend, in case 

they reside in said county. 

323. Sec. II. That the testimony given in under the provisions of this 
Testimony to act shall be taken down by order of the court, and made a matter of file 
be taken down in the clerk's office. — [And see next Act.l 

niea. g^^^ jjj^ That all laws and parts of laws militating against this act, be 
and the same are hereby repealed. 

An Act to make certain persons therein mentioned competent Jurors and 
Witnesses. And to declare the law therein. — Approved Feb. 13, 1854. 

324. Sec. 1. JBe it enacted^ That from and after the passage of this 
Who may be act, all inhabitants of counties of this State, who are competent jurors or 
Jurors and witnesses in other case be declared and holden to be competent jurors or 

Witnesses witnesses, in any case, in any court where such counties are parties to the 
whereaCoun- ., .' / n ^u • • .i. • -^ ^- ^ 

ty is party. ^^^^i c>r interested therem m then* capacity as corporations or quasi-corpo- 
rations. Any practice, usage or custom, to the contrary notwithstanding. 

An Act to amend an act passed the 17th day of December, 1847, to au- 
thorize Parties to compel Discoveries at Common Law. And for other 
purposes therein mentioned. — Approved Dec. 22, 1857. 
Parties may 325. Sec. I. From and after the passing of this act, it shall be lawful, 
^^W't™'"^^ in all cases that may be pending in law or equity, in this State, for plain- 
as i e . ^-^g ^^^ complainants, to examine defendants as witnesses ; and for de- 
fendants to examine plaintiffs or complainants, as witnesses, under the same 
rules and regulations as are now prescribed by law, in relation to other 
witnesses. 
Parties may 326. Sec. II. Said parties shall be compelled to attend court as wit- 
be brought in- nesses, upon being subpoenaed, in the same manner and within the same 
*^ ^^V-V ^^ time, as is now required by law, in relation to other witnesses. And that 
^ ^es are^^^^**^^ testimony of said parties may be taken by commission, under the same 
circumstances, and under the same rules and regulations, and in the same 
manner, as is now prescribed by law, in relation to the taking the testi- 
Jury to deter- mony of other witnesses by commission. And the testimony of said par- 
mine weight ties shall be entitled to such weight and consideration with the jury, as 
01 ies imony. they, under all the circumstances, may see proper to give. 
Party present 327. Sec. III. If the parties, as aforesaid, are i^resent at the time of 
must ^^^^y^ the trial of any case, they shall be compelled to testify, as provided in the 
subpoenjBd ^^"^^ section of this act, although they may not have been served with a 

etc. ' process of subpoena. 
Party failing 328. Sec. TV. If the parties aforesaid, or any of them, after having 
to appear and i^een subpoenaed, as aforesaid, shall fail to appear at court, according to 
may beacon- ^^® requisitions of said subpoena, or appearing shall refuse to testify, or 



JUmCIARY.— TESTIMONY. 



113 



shall fail or refuse to appear and answer before commissioners, (when their 
testimony is required to be taken by commission,) then and in that case, 
said cause shall be subject to the same continuances as are allowed, by 
law, for the absence or non-attendance of other witnesses ; and after said 
continuances are exhausted, said action shall be dismissed, provided it be 
the plaintiff who refuses to appear and testify, as aforesaid ; or if the party 
who fails or refuses, to be and appear, as aforesaid, be the defendant in 
said cause, his plea, or pleas and answers, if he has filed any, shall be 
stricken out, and judgment given against him, by default, or such other 
order may be taken and had, in said cause, as in the discretion of said 
court, may be just and proper. And in the event said parties, plaintiff or 
defendant, whose evidence or discovery may be required in any action 
pending in either courts, by interrogatories, shall fail or refuse to answer 
the same, or in any case they are answered evasively, the same rule or 
order may and shall be had as herein-before provided, in case of failure or 
refusal to attend and answer, when said parties are subpoenaed. 

329. Sec. V. N'othing in this act shall be construed so as to permit 
any party to be a witness for himself, on his own motion. 

Sec. YI. All laws in conflict with this act, are hereby rej)ealed. 



tinued. Pl'ff 
refusing, cause 
to be dis- 
missed. 
Defendant re- 
fusing, An- 
swer to be 
stricken out, 
etc. 



Party refusing 

to answer lu- 

terrogatories, 

same order. 



Party not to^^ 
be witness foflp 
himself. 



An Act to amend an act, approved 19th December, 1829, to point out 
and regulate the manner of taking the Testimony of Females, in certain 
cases, so as to include Practising Physicians and School Teachers, in 
actual employment. — Approved^ Dec. 11, 1858. 
330. Sec. I. From and after the passage of this act, the provisions Physicians 

of the above-stated act, be so amended as to include practising physicians, ^m ^^^^^ 

and school teachers in actual employment in their vocation when the court privlleo-e', 

sits. 



INTERROGATORIES. 
Commission, 

STATE OF GEOKGIA, \ By his honoT Henry G. Lamar, one of the Judges 

Houston County. ^ of the Superior Courts of said State. 

To John Doe, Richard Roe and Charles Smith, Esqrs. — Grreeting. 

Whereas, there is a certain matter of controversy now pending in 
the Superior Court for said County, between Arthur Watson, Plaintiff, 
and Marcus Ku7ize, Defendant, in an action of Assumpsit And whereas, 
Samuel Felder, is a material witness in said suit, and cannot attend our 
said Court, in person, without manifest inconvenience. 

Now, know ye, that we reposing special trust and confidence in your 
prudence and fidelity, have appointed you, and you, or any two (or 
more) of you, are hereby authorized and required, to cause the said 
Samuel Felder, personally, to come before you, and after being duly 
sworn, to examine him concerning the said suit, agreeably to the Inter- 
rogatories hereunto annexed. And the answers to the same being 
plainly and distinctly written, you are to send the same, closed up, 
under your hands and seals, to our said Court, to be held on the fourth 
Monday in October next; together with this writ. 

Wit?iess, the honorable Henry G. Lamar., one of the Judges of said 
Cotirt, this June 1, 1859. 

[I^. S.] William H. Milleb, Clerh 

8 ' 



114 JUDICIARY.— TESTIMONY. 

Direct Interrogatories. 

ARTHUK WATSON ) . . 

vs. \ Assumpsit in Houston Superior Court. 

MARCUS KUNZE. ) 

Interrogatories to be exhibited to Samuel Felder^ a material witness on 
the part of the Plaintiffs and who resides out of the County of Houston. 

Int. 1. Do you know the parties to the above suit? 

Int. 2. Please state all you know, or have heard the Defendant say 
about his owing the Plaintiff money. When was it ? How much did 
the Defendant say he owed the Plaintiff? 

Int. 8. State fully and at large, all you know or have heard the 
Defendant say, that will benefit the Plaintiffs as if particularly inter- 
rogated thereto. 

John M. Giles, Plff's Att'y. 

Cross Interrogatories. 

Int. 1. Did not the Defendant ^d^j^ in the conversation of which you 
testify, that he had paid the Plaintiff all he ever owed him ? 

Int. 2. Do you not know from what you have heard the Plaintiff 
say, that the Defendant has paid him all the money he ever owed him? 

Int. 3. State fully and at large, all you know or have heard the 
Plaintiff sajs that will benefit the Defendaritj as if particularly interro- 
gated thereto. 

James A. Pringle, Deffs Atfy. 

Answers to Direct Interrogatories. 

geougia—dijbb county. 

ARTHUR WATSON ) 

vs. y Assumpsit in Houston Superior Court. • 

MARCUS KUNZE. ) / . 

By virtue of a Commission to us directed from the Superior Court of 
Houston County, we have caused Samuel Felder^ the witness in said 
Commission named, to come before us; and said witness being duly 
sworn, true answers to make to certain interrogatories to said Com- 
mission annexed, deposeth and answereth as follows, to wit — 

To the 1st Direct Interrogatory he answers — I do. 

To the 2d he answers — I was at Macon, in said County, on Satur- 
day last, and had a conversation with the Defendant relative to a suit 
instituted against him by the Plaintiff in the Superior Court oi Houston 
County, in which conversation he said, he owed the Plaintiff one hun- 
dred dollars borrowed money. 

To the 3d he answers — I know nothing more that will benefit the 
Plaintiff. 

Answers to the Cross-Interrogatories. 

To the 1st Cross-Interrogatory he answers — If in the conversation 
with the Defendants (referred to in my answer to the 2d. Direct 
Interrogatory,) he said he had paid the Plaintiff sdl he ever owed him, 
I do not recollect it. 

To the 2d he answers — I do not recollect having heard the Plaintiff 
say, that the Defendant had paid him all he ever owed him. 



JUDICIARY.— TESTIMONY. 115 

To the 3d he answers — I know nothing more that will benefit the 
Defendant. 

Answered, subscribed and ) SaMUEL FeLDER. 

sworn to before us this July 10, 1859. f 
Washington Poe, Com. I 

Thomas P. Stubbs, Com. ) 

Directions how to have Interrogatories executed, etc. 

1st. Fill up tbe blank left in the Commission with the names of the Commissioners, 
written out in full. 

2d. There must be, at least, two Commissioners ; they should be substantial respectable 
men. 

3d. The Answt^rs may be written on a separate sheet of paper if, as is generally the 
case, that which contains the Interrogatories is not sufiSciently large, and attached to the 
Commission. The Answers must not be in the hand- writing of any of the parties, or of 
any Attorney engaged in the case ; nor must they be previously written by any such 
person and transcribed. 

4th. Direct the packet thus: — 
ARTHUR WATSON j 

vs. > Assumpsit in Houston Superior Court. ^ 

MARCUS KUNZE, ) 
To the Clerk of the Superior Court, 

Perry, Georgia. 

5th. The Packet must be sealed up with as many seals as there are Commissioners ;, 
each Commissioner must write his name across one of the seals, or wafers, with which, 
the Packet is sealed. 

6th. The Packet may be forwarded by Mail ; if that course be taken, the Commission^ES, 
or one of them, must deliver it to the Post-Master, who must make the following entry 
upon it: "Received, Macon, Bibb County, Georgia, from the hands of Thomas P. Sliibbs, 
Esq., one of the Commissioners, and to be forwarded by Mail, this July 20, 1859." / 

James A. Nesbit, P,> M. 

7th. The Post-Master at the place to which the Packet is directed, must preseni it in. 
open Court. 

8th. The Packet may be returned by a private person ; in this case, the person will 
have to swear, upon delivering the Packet in Court, "that he received it from tihe hands, 
of the Commissioners, or one of them ; that it has remained, unopened and unaltered 
in his possession, ever since." The same mode may be observed in Justices' Courts. 

9th. When the packet is presented in Court and received, the Attorney sliould move 
the Court, for leave to open it, upon the granting of which Motion, the Clerk should 
make the following entry, on the envelope ; — " Received on the usual oath of John Doe^ 
\vith leave to open, this July 23, 1859." 

William H. Miller, Clerk. 

An Act supplementary to the Judiciary Act. — Approved JS'ov. 26, 1802. 

331. The judges of the superior courts shall not, in any ease whatever,, No Deed or 
withhold any grant, deed, or other document, from the jury, under which Grant to be 
any party in a cause, may claim title, except such evidence of title as may w^|{j^^|^^^^^ 
be barred by the act of limitation. ^ ^^^' 

An Act to legalize and make valid two Manuscript Books of the old 
Records of the Executive Department. — Approved Dec. 16, 1811. 

332. From and after the passing of this act, the two manuscript books Twq Books, 
A and B, in the executive department, containing the records of said (A and B), of 
department from the year 1777 to the year 1784, inclusive, that have been ^^ Executive 
transcribed, in pursuance of a resolution of the tenth day of December last ^^all? 
past, be and the same are hereby legalized and made valid, and shall, 
henceforth, become a part of the records of said department. 

An Act to legalize and make valid certain acts of Sheriffs and Clerks \ 
and to regulate the admission of Evidence in t^he several Courts of Law 
and Equity in this State, so far as relates to certain papers. — Approved 
Dec. 15, 1810. 



116 JUDICIARY.— TESTIMONY. 

Whereas^ considerable doubts have arisen in the Courts of this State, 
relative to the official returns of Sheriffs and Deputy-Sheriffs, whose Bonds 
and Oaths have not been entered on the Minutes of the Court before 
which such officers may have qualified. And lohereas^ doubts have 
also arisen in said Courts, as to the propriety of admitting Deeds to go as 
evidence before a Jury, which a Deputy-Clerk may have certified, as to 
the enrollment ; for remedy whereof — 
Official acts of 333. Sec. I. JBe it enacted^ That the official returns of all sheriffs and 
Sheriff's made deputy-sheriffs, shall be and the same are hereby legalized and made valid, 
valid. iq jj^ii intents and purposes, as if made by a sheriff or deputy, who had 
been qualified according to law. 
Acts of Dep- 331^ S^c. II. All deeds, mortgages, conveyances and other writings, 
uty-Clerks (^^rolled by any deputy-clerk, in the proper court, and certified by him as 
such, the same shall be received and admitted as evidence, in any court of 
this State, in like manner as if the same had been recorded by the chie 
clerk. 
Acts of Dep- 335. Sec. III. All grants, copy-grants, testimonials, or any other docu- 
uty-Secretary nient or paper, whatsoever, heretofore issued out of the Secretary of 
^ valid^ etc ^ ^^^^e's office, purporting to be signed by a deputy-secretary of State, shall 
' ' be held and taken as legal : JProvided^ the said paper shall' be ascertained 
to be genuine : Provided^ nothing contained in this act, shall be so con- 
strued as to admit any grant obtained on the south side of the Oconee and 
Appalachee rivers, previous to the late land lotteries, as evidence in any 
coui;t within this State. 
Indorsement 336. Sec. TV. In all cases brought by any indorsee or indorsees, 
may not be assignee or assignees, on any bill, bond or note, before any court of law 
proven, etc. and equity in this State, the assignment or indorsement, without regard to 
the form thereof, shall be sufficient evidence of the transfer thereof And 
the said bond, bill or note, shall be admitted as evidence, without the 
necessity of proving the hand-writing of the assignor or assignors, indorser 
or indorsers. Any law, usage or custom, to the contrary nothwithstanding. 

An Act declaring certified copies of Official Bonds, Testimony in certain 
cases. — Approved Dec. 20, 1823. 
Certified cop- 337. In all causes now pending, or which may hereafter be instituted, 
ies of OflScial in any of the courts of law or equity in this State, against the principal 
Bonds, shall and securities, or either of them, on any official bond, given by any execu- 
unksr d^enled ^^^'> ^^^^^ii^i^trator or guardian, or any other public officer of this State, it 
on oath, shall be lawful for the said courts to receive as evidence of the fact of the 
due execution of such bond, a certified copy thereof, made by the proper 
officer where such bond is of file or recorded ; which copy shall be suffi- 
cient testimony in the cause, unless the same shall be denied on oath. 

An Act to amend an act entitled " an act to regulate the Admission of 
Evidence, in certain cases, in the several Courts of Law and Equity in 
this State ; and to provide for the Recording of Conveyances of Person- 
al Property." — Approved Dec. 21, 1830. 
Attestations 338. The certificate of any public officer, under his hand and seal of 
properly offi- office, if one is attached thereto, either of this State or any county thereof, 
cial areEvi- \^ relation to any matter or thing ^^ertaining to their respective offices ; or 
which, by presumption of law, properly pertains thereto, shall be admitted as 
Original to be evidence before any court of law or equity in this State : Provided never- 
accountedfor. theless.^ that nothing in this act contained, shall be so construed as to pre- 
vent any court to require the production of the original, to which said cer- 
tificate may appertain, or that it may be accounted for. 



JUDICIARY.— TESTIMONY. 117 

All laws and parts of laws, militating against this act, are hereby 
repealed. 

An Act amendatory of an act assented to the 21st Dec, 1820, [1822,] 
authorizing the Certificates and acts of Notaries Public, to be received in 
Evidence, in certain cases. — Approved Dec. 26, 1836. 

339. Sec. I. From and after the passaoje of this act, the certificates, pro- Certificate, 
tests and other acts of notaries public, under the hand and seal of such notary, ®*9' ^ Nota- 
in relation to the non-acceptance of any bill-of-exchange, draft or other order, madeevi-' 
made for the payment of money or other thing; and also, in relation to the dence. 
non-payment of any bill-of-exchange, draft, order, bond or note, for the pay- 
ment of money or other thing, shall be deemed and received by the several 

courts of law and equity in this State, as sufficient Jor^ma/ac^e or presump- 
tive evidence of the facts therein stated, without any other or further proof: 
Provided always., that nothing in this act shall prevent either party, plaintiflT ^^"^^nce of 
or defendant, from having the benefit of the testimony of such notary, should ^^ ^^^ ^ 
they deem it necessary : And provided also, that the party relying on such Act of Notary 
notarial act, shall at the first term, file in the court, either a copy or the origi-must be filed, 
nal of such protest or other acts: And provided further, that whenever h^^^^^S^oGIq, 
plaintiff*, relying upon such notarial act, shall fail to file the same, as is herein • ^ timT 
provided, the court may grant such further time as it shall deem to be reason- 
able, in which it must be filed, in order to be operative as evidence. — \^This 
act supersedes that of 1822.] 

Sec. II. [Repeals all conflicting acts.] 

An Act to regulate the admission of Oral Evidence, in reference to Written 

Instruments in certain cases. — Approved Dec. 25, 1837. 

Whereas, it is now the practice, in some of the Circuits of this State, to 
admit Oral Evidence to prove that Deeds and Bills of Sales, absolute upon 
their face, were intended as Mortgages or securities for the payment of money, 
or other thing only, without any charge of fraud in obtaining them. A7id 
whereas, such practice may lead to serious injuries to the rights of the good 
people of this State, over their property, and may present strong inducements 
to the commission of frauds and perjuries ; for remedy whereof — 

340. Sec. I. De it enacted. That from and immediately after the passing Oral Evidence 
of this act, oral evidence shall not be received in any courts in this State, to inadmissible 
show that a deed or bill of sale, absolute upon its face, made after the Passing j^g-.^^^^^, 
of this act, was intended as a mortgage or security for the payment of money gao-e,'etc. But 
or other thing, unless there is a charge of fraud in obtaining the same, in admissible to 
which case, oral evidence, going to show the fraud only, may be received, prove fraud. 
Any law, usage, custom or practice, to the contrary notwithstanding. 

Sec. II. All laws and parts of laws, militating against this act, be and the 
same are hereby appealed. 

An Act to declare the force and effect of certain Contracts and Instruments 

in Writing, therein specified. — Approved Dec. 29, 1838. 

~Whereas, a diversity of decisions have prevailed in the several courts of 
this State, in regard to the force and effect of certain Written Contracts and 
Instruments in Writing, hereafter mentioned ; for remedy whereof, and for 
the purpose of securing uniformity of Decisions, hereafter to be made, in the 
several courts of law and equity in this State, respecting such Instruments. — 

341. Sec. I. Be it enacted, That from and immediately after the passing a Scroll with- 
of this act, whenever any written contract, or other instrument in writing, out reference, 
shall be produced in evidence, or for any other legal purpose whatever, before ^^ reference 
any court of law^ or equity in this State, during the progress of any bill or ^\ ^^all 



118 



JUDICIARY.—TESTIMONY. 



constitute a suit whatever, pending in any of the said courts, and such written contracts or 
sealed instm- instrument in writing shall have a scroll, or other representation of a seal, 
^^^^- annexed thereto, instead of a seal composed of a wafer or wax, or other 
tenacious substance ; and also, whenever it shall be shown by words expressed 
in the body or conclusion of said written contract or other instrument in writ- 
ing, that it was the intention of the party or parties subscribing the same, to 
become bound by or to execute a writing obligatory, or sealed instrument, though 
no scroll or seal has been annexed to said written contract or other instru- 
ment, shall be held, taken and construed by said courts, both at law and in 
equity, to have all the force, effect and dignity of writings obligatory, or in- 
No retro8pec-struments under seal : JProvided, tha.t the provisions of this act shall not 
tive opera- extend to any instruments heretofore executed. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 



tion. 



Physician, 
Blacksmith, 
etc. Books 
made evi- 
dence, as 
Merchants. 



An Act to be entitled an act to authorize the recovery, by law^, of Open 
Accounts in favor of certain classes of persons therein named, upon the 
same proofs which is now allowed by the laws of this State, in favor of 
Tradesmen and Merchants. — Approved Dec. 23, 1843. 
342. Sec. I. That from and after the passage of this act, physicians, 
blacksmiths, and all other persons in the practice of any regular craft, shall 
be allowed to sue for and recover judgment in the several courts of law 
in this State, on open accounts, in their favor, upon the production and 
proof of their books of account, in the same manner and on the same terms 
as is now authorized by existing laws, in cases where tradesmen and mer- 
chants are parties plaintiffs in said courts. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 



Ax Act to admit Tax-Collectors' Deeds in Evidence, in certain cases 
therein named. — Approved Dec. 23, 1840. 
Tax-Collect- ^'^^^ ^^C- I- That from and after the passage of this act, when any 
or's Deed how party to a suit in any of the courts of this State, shall desire to offer in 
ajmij;ted in evidence, in any suit, a tax-collector's deed, and shall make oath that the 
tax-collector who executed the same, is dead, or has removed to parts un- 
known, it shall be the duty of such court, to admit the said deed, as evi- 
dence of the flicts therein set forth and contained, without further proof: 
Provided., the same has been duly recorded. 
Sec. II. [Repealing section.] 



Evidence. 



Acts of the 
Legislature. 
Records and 
Judicial pro- 
ceedings of 
other States. 
how proven. 



ACTS OF CONGRESS. 

Sec. I. The acts of the Legislatures of the several States, shall be 
authenticated by having the seal of their respective States affixed thereto. 
The records and judicial proceedings of the Courts of any State, shall be 
proved or admitted in any other Court, within the United States, by the 
attestation of the Clerk, and the Seal of the Court annexed, if there be a 
Seal, together with a Certificate of the Judge, Chief- Justice, or presiding 
Magistrate, as the case may be, that the said attestation is in due form. 
And the said records and judicial proceedings, authenticated as aforesaid, 
shall have such faith and credit given to them, in every Court within the 
United States, as they have by laAv or usage, in the Courts of the State 
from whence the said records are or shall be taken.— .4c^ of May 26, 1790. 



JUDICIARY.— TESTIMONY. 119 

Clerk of the Inferior Court's Certificate. 

STATE OF GEOKGIA, \ \ John H. King, Clerk of the Inferior Court 
ffouston County. | of said County, do hereby certify, that the above 
and foregoing contains a true and exact statement of the proceedings 
in the case of John Doe against Richard Roe^ in an action o^ Assumpsit^ 
in said Court, between the parties, as appears from the records of said 
Court. 

Given under my hand and seal of office^ this May 1, 1859. 

John H. King, Clerhy [L. S.] 

Justice of the Inferior Courts Certificate. 

STATE OF GEORGIA, ) \^ John D. Wiiin, one of the Justices of the 
Houston County. J Inferior Court of said County, (which Court is a 
Court of Eecord,) do hereby certify, that John H. King^ whose name 
appears to the foregoing Certificate, was at the time of making said ' 
Certificate, Clerk of the said Inferior Court of said County, and by 
law, entrusted with the Eecords pertaining to said Court. That his 
Certificate is in due form of law, and that the signature, purporting 
to be his, is genuine. 

Given under my official signature this May 1, 1859. 

John D. Winn, J. I. C. 

Sec. I. From and after the passage of this act, all Records and Ex- j^g^j^j.^^ g^j^j 
emplifications of Office-Books, which are or may be kept in any public Exemplifica- 
Office of any State, (not appertaining to a Court,) shall be proved or ad- tions of Office- 
mitted in any other Court or Office, in any other State, by the attestation Books, how 
of the keeper of said Records or Books, and the seal of his Office there- proven, 
unto annexed, if there be a seal, together with a certificate of the presid- 
ing Justice of the Court, of the County or District, as the case may be, 
in which such Office is or may be kept, or of the Governor, the Secretary 
of State, the Chancellor, or the Keeper of the Great Seal of the State, 
that the said attestation is in due form, and by the proper officer. And 
the said Certificate, if given by the presiding Justice of a Court, shall be 
further authenticated by the Clerk or Prothonotary of said Court, who 
shall certify, under his hand and seal of Office, that the said presiding 
Justice is duly commissioned and qualified. Or if the said Certificate be 
given by the Governor, the Secretary of State, the Chancellor, or Keeper 
of the Great Seal, it shall be under the Great Seal of the State in which 
the said Certificate is made. And the same Records and Exemplifications, 
authenticated as aforesaid, shall have such faith and credit given to them, 
in every Court and Office within the United States, as they may have by 
law or usage, in the Courts or Offices of the State from whence the same 
are or shall be taken. 

Sec II. [Extends the provisions of both acts to " the Territories and 
Countries subject to the jurisdiction of the United States."] — Act of 
March 27, 1804. 

Clerk'' s Certificate. 

STATE OF GEORGIA, I J, William II Miller, Clerk of the Superior 

Houston County. j" Court, (and by virtue of my Office, keeper of the 

Conveyancing Records, which Records do not appertain to a Court,) do 



120 JUDICIARY.— TESTIMONY. 

hereby Certify, that the foregoing three sheets, contain a full and true 
Exemplification, taken from the Records, relating [Jiere give a statement 
of the paper,'] as the same appears of entry in said Records, in my 
Office. 

Given under my hand and seal of Office, this May 1, 1859. 

[L. S.] William H. Miller, Clerk. 

Judge's Certificate. 

STATE OF GEOKGIA, i l^ Henry G. Lamar, one of the Judges of the 
Bihh County. j Superior Courts of said State, presiding in the 
County of Houston, do hereby Certify, that William H. Miller, whose 
name appears to the foregoing Certificate, was on the day and date 
thereof, Clerk of the Superior Court and Keeper of the Conveyancing 
Records of said County of Houston, as he is represented to be in said 
Certificate. That the said Certificate is in due form of law and bv 

4/ 

* the proper officer. And that the above signature, purporting to be 
his, is genuine. 

Given under my hand and official signature, this May 1, 1859. 

Heney G. Lamar, J. S. C. M. C. 

Testimonial hy the Governor. 

STATE OF GEORGIA. 

By his Excellency, Joseph E. Brown, Governor and Commander-in- 
Chief of the Army and Navy of said State. 

To all whom these presents shall come — Greeting: 
Know ye, that Henry G. Lamar, whose signature appears to his 
Certificate, on the Instrument of Writing hereunto annexed, was at 
the time of signing said Instrument, one of the Judges of the Superior 
Courts of said State, presiding in the Superior Courts of the Macon 
Circuit; and that his attestation is in due form of law; therefore, all 
due faith, credit and authority is and ought to be had and given to 
his Proceedings and Certificates, as such. 

In witness whereof, I have hereunto set my hand and caused to be 
affixed the seal of the State, in Milledgeville, the fifth day of May, 
eighteen hundred Siud fifty -nine, and the eighty-third year of American 
Independence. 

By the Governor — Joseph E. Brown. 

[Seal] James H. Watkins, Secretary of State. 

Note. — If the Exemplification. &c., souglit to be had, relates to Records and Judicial 
proceedings, the Certificates of the Clerk and Judge, are sufficient without the Testi- 
monial of the Governor ; but if the Exemplification, &c., relates to Records and Exem- 
plifications of Office-Books, which are or may be kept in any Public Office, of any State, 
not appertaining to a Court, then the Testimonial of the Governor, must be added. It is 
safest, perhaps, in all cases, to have the Testimonial of the Governor. 

An Act to authorize the admission, in evidence, of Certified Copies from 
the Executive Department and other Offices connected therewith, to be 
used as Evidence in any Court of Law or Equity, in this State, Sdq. — 
Approved March 1, 1856. 
■CertiSed Cop- 344, Sec. I. That certified copies of any original papers in the Execu- 
tes from Exec- tive Department or any of the offices connected therewith, that are im- 



JUDICIARY.— VERDICT, JUDGMENT, APPEAL. 



121 



portant or necessary in any of the civil or criminal courts of this State, utive Depan- 
shall be conceded [received] in evidence, in lieu of the original, in any court ment, Evi- 
of law or equity in this State. dence. 

Sec. II. [Repeals all conflicting lavrs.] 



VERDICT, JUDGMENT, APPEAL. 

345. Sec. XXVI. In all cases where a verdict shall be rendered, the party Verdict and 
in whose favor it may be, shall be allowed to enter and sign judgment thereon Judgment, 
at any time within four days after the adjournment of the court, at the (clerk's 

office, for the amount of such verdict and all legal costs recoverable thereon ; 
and no execution shall issue on any verdict until such judgment shall be en- 
tered, signed by the party or his attorney. And all the property of the party 
against whom such verdict shall be entered, shall be bound from the signing 
of the first judgment. [But where several judgments shall be of equal date, 
the first execution delivered to the sheriff shall be the first satisfied :] Pro- 
vided always, that any party against whom such judgment shall be entered, Stay of Exe- 
may enter good and sufficient security, either in open court or in the clerk's cution. 
office, within the time aforesaid, for the payment of the judgment and costs, 
within sixty days ; and if such party shall not pay the same agreeably thereto, 
execution may issue against such party and the security, without other pro- 
ceeding thereon: And provided also, that in case either party shall be dissat- Appeal allow- 
isfied with the verdict of the jury, then and in all such cases, either party ^^ J^ matter 
may, within four days after the adjournment of the court in which such verdict ^ 

was obtained, enter an appeal in the clerk's office of such court, as matter of 
right, [see 349.] And if such verdict shall be obtained in the inferior court, 
it shall be the duty of the clerk thereof to transmit such appeal to the clerk of 
the superior court of the county in which such verdict shall be obtained, who 
shall enter the same on the appeal docket, which appeal shall be admitted and 
tried by a special jury. Provided, the person or persons so appealing shall, p^j-ty appeal- 
previous to obtaining such appeal, pay all costs which may have arisen on ing must pay 
the former trial, and give security for the eventual condemnation money, Costs and give 
except executors and administrators, who shall not be liable to give such secu- ®^^^^ ^' 
rity. But if, on hearing such appeal, it shall appear to the jury that the appeal 
was frivolous and intended for delay only, they shall assess damage to the 
party aggrieved by such delay, not exceeding twenty-five per centum on the Damages for 
principal sum which they shall find due. And such damages as shall be so frivolous Ap- 
assessed, shall be specially noted in the verdicts of such jurors ; and no person P^^ * 
shall be allowed to withdraw an appeal after it shall be entered but by the 
consent of the parties. And in case of a jury committing a contempt, or 
breaking up before giving in their verdict, in any civil case, the court may 
declare the same a mis-trial, and shall fine each of the offending juror or jurors 
in a sum not exceeding one hundred dollars. And if any party, plaintiff or Liability of 
defendant, be hereafter non-suited or cast, by reason of the neglect or miscon- Attorney m 
duct of the attorney who shall hereafter bring or be employed m such suit, m r^^ Costs 
all cases the said attorney shall pay all costs that may accrue thereby, and the 
court shall immediately enter up judgment accordingly for the same. 

346. Sec. XXVII. No confession of judgment shall hereafter be entered confessions of 
up, but in the county where the defendant or defendants may reside, or unless Judgment 
the cause hath been regularly sued out and docketed in the usual way, as in when and 
other cases; nor until such cause be called in order, by the court, for trial. ^ made ^ 



Mis-trial. 



122 JUmCIAKY.— VERDICT, JUDGMENT, APPEAL. 

Interest not 34*1. Sec. XXVIII. No verdict shall be received, on any unliquidated 
to be allowed (Jejnand, where the jury have increased their verdict on account of interest, nor 
as amages. g^^\i interest be given on any open account, in the nature of damages. 

An Act to cause all Appeals from the Courts of Ordinary of this State, to be 
tried and determined by a Special Jury of the County where the case may 
happen ; touching the Probate of Wills and granting Letters of Adminis- 
tration, in which matters of fact are involved, instead of a Decision being 
had thereon by the Court only. — Approved Dec. 19, 1823. 
TFAerea.9, it has heretofore been the practice in some of the Judicial Circuits 
of this State, for the Judges of the Superior Courts to hear and determine 
Appeals from the Courts of Ordinary of this State, touching the Probate of 
Wills and granting Letters of Administration, in which matters of fact were 
involved. And it being the policy of this government to retain the trial by 
jury in all cases in which matters of fact are involved — 
How Appeals 348, De it therefore enacted., That from and immediately after the passing 
from the ^ of this act, all appeals taken up from the decision of the several courts of 
Oourto Oich- Qj.(5ijij^j.y of thig State to the superior court, touching the probate of wills and 
tried. granting letters of administration, in which matters of fact are involved, shall 
be tried and determined by a special jury of the county where the case may 
happen ; in the same way and under the same regulations as other appeals. 
Any law, usage or custom, to the contrary notwithstanding. 

An Act to explain and amend the Judiciary Act of 1799, so far as concerns 
the granting of Appeals in certain cases. — Approved Dec. 23, 1839. 
TFAereas, a contrariety of opinion exists among the judges of this State, 
and a different practice prevails in the different judicial circuits thereof, touch- 
ing the granting of appeals under certain circumstances ; for remedy whereof — 
t3ne of several 349. Sec. I. De it enacted., That from and after the passage of this act, 
parties may jt shall and may be lawful, whenever there shall be more than one party, plain- 
Appeal. |.j^ Qj. (defendant, and one or more of said parties, plaintiff or defendant, desire 
to appeal, and the other or others, refuse or fail to appeal, it shall and may 
be lawful for any party, plaintiff or defendant, to enter his appeal, under such 
rules and regulations as are now provided by law. 
Damages 350. Sec. II. Upon the appeal, either of the plaintiff or defendant, as 
against Ap- aforesaid, the whole record shall be taken up, but in case damages shall or 
and Ms s^cif- ^^^^ ^^ awarded upon such appeal, such damages shall only be recovered 
rity. against the party or parties appealing and their securities, and not against 
the party or parties failing or refusing to appeal. 
Securities' 351. Sec. III. In case any such security or securities shall be compel- 
remedy \q^ to pay off the debt or damages for which judgment may be entered, 
^^^^Tant^^^ "in any cause, he, she or they shall have recourse only against the party or 
parties for whom he, she or they, became security or securities. 
Sec. IV. [Repealing section.] 

An Act to authorize parties to enter an Appeal, in certain cases therein 
mentioned. — Approved Dec. 27, 1843. 
Party dying, 352, Sec. I. Be it enacted^ That in all eases hereafter to be tried in 
Eepresenta- any of the courts of this State, when either the plaintiff or defendant shall 
peaMn^cer?' ^.^^'^^^^^^' depart this life, after said cause has been tried, and before the 
tain cases. ^^"^^ ^^s expired which such party has allowed by law to enter an appeal, 
and no appeal shall have been entered, it shall be the right of the legal rep- 
resentatives of such party dying, to enter an appeal within four days from 
the time such executor or administrator shall have been qualified : Pro- 



JUDICIARY.— VERDICT, JUDGMENT, APPEAL. 123 

vided^ however^ that in the construction of this act, no appeal may be en- 
tered in causes not the subject-matter of appeal. 

353. Sec. II. Whenever an appeal shall be entered under this act, it Notice must 
shall not be necessary to revive suit under scire facias; but suit shall be l)e given to 
revived by the party giving notice to the adverse party within thiitydays *^^ adverse 
from the time of appeal. And whenever a defendant shall appeal, said ^' 
cause shall stand for trial on the appeal-docket, at the first court after 
twelve months shall have expired after such executor or administrator shall 
have been qualified. 

Notice hy the Representative, 
JOHN DOE I Assumpsit m Houston Superior Qoxxxidindi Verdict ioii\iQ 
RICHARD ROE. j P^ai^tiflf, at April Term, 1859. 

The defendant having departed this life after verdict in the above 
cause and within the time allowed for appealing, without entering an 
appeal, the Plaintiff is hereby notified that the undersigned did enter 
an appeal in said case on the tiuentieth day of Aprils eighteen hundred 
2i,ndi fifty -nine ; (within four days after his qualification as Executor^) in 
conformity with the statute in such case made and provided. This 
May 1, 1859. Charles Smith, Ex^r of B. B. dec. 

Stay Bo?id. 

JOHN DOE ] Yerdictfor the Plaintiff for five hundred dollars prin- 

vs. > cipal debt; thirty dollars interest, and fifteen dollars 

RICHARD ROE. ) COStS of Suit. 

The Defendant in the above-stated case comes forward and demands 
a Stay of Execution, according to the statute in such case made and 
provided, and brings Charles Smith and tenders him as his Security ; 
and they, the said Bichard Boe and Charles Smith, acknowledge them- 
selves, jointly and severally, bound unto John Boe, the Plaintiff, for 
the payment of the said verdict and costs, in said cause. 

In testimony whereof the said Bichard Boe and Charles Smith, have 
hereunto set their hands and affixed their seals, this 3fay 1, 1859. 
Approved — Eichard Koe, [L. S.] 

William H. Miller, Clerh, Charles Smith, [L. S.] 

Appeal Bond. 

JOHN DOE ) Yerdict for the Plaintiff for five hundred dollars prin- 

t's. V cipal debt ; thirty dollars interest, and fifteen dollars 

RICHARD ROE, ) cOStS of suit. 

The Defendant being dissatisfied with the Yerdict of the Jury ren- 
dered in the above cause, and having paid all costs, and demanded an 
Appeal, according to the statute in such case made and provided, 
brings Charles Smith and tenders him as his Security; and they, the 
said Bichard Boe and Charles Smith, acknowledge themselves, jointly 
and severally, bound unto John Doe, the Plaintiff, for the payment of 
the eventual condemnation money in said cause, and all future costs. 

In testimony whereof the said Bichard Boe and Charles Smith, have 
hereunto set their hands and afiixed their seals, this May 1, 1859. 
Approved — Kichard Eoe, [L. S.] 

William H. Miller, Clerh. Charles Smith, [L. S.] 



124 JUDICIARY.— VERDICT, JUDGMENT, APPEAL. 

An Act to enable parties, Plaintiffs or Defendants, in any court of this 
State, to Appeal without paying costs and giving security, as now re- 
quired by law, on certain conditions herein mentioned. And also to 
enable parties in Justice's Courts in this State, to obtain Certioraries 
without paying costs and giving security, on certain conditions herein 
mentioned. — Approved Dec. 27, 1842. 
Appeal al- 354. Sec. I. JBe it enacted., That from and after the passage of this act, 
lowed where when any party, plaintiff or defendant, in any suit at law or in equity, here- 
from poverty ^^£^gj^. ^^ ^^ commenced, in any of the courts of this State, where the party 
pay cost and ^^^* shall be dissatisfied with the decision, and shall be unable to pay cost 
give security, and give security, as now required by law ; if such party will make and 
file an affidavit in writing, that he or she is advised and believes 
that he or she has a good cause of appeal, and that owing to his or her 
poverty, he or she is unable to pay the cost and give security, as now re- 
quired by law in cases of an appeal, such party shall be permitted to appeal 
without the joayment of cost, and without giving security, as heretofore 
practised in this State. 
Certiorari al- 355. Sec. II. In all cases hereinafter determined in any of the justices, 
lowed to cer- courts of this State, on the appeal, and the party cast shall be dissatisfied 
*^th ^^P^'^^ with the decision, if such party wiU make an affidavit in writing, that he 
Ing co^t ami ^^' ^^® ^^ advised and believes that he or she has good cause for certioraring 
giving secu- the same to the superior court, and that owing to his or her poverty, he 
rity. or she is unable to pay the cost and give security as required by law, such 
affidavit shall in every respect, answer instead of the certificate of the pre- 
siding justice, that the cost has been paid and security given, as now re- 
quired by law. And the judges of the superior courts respectively, shall 
grant writs of certiorari on the production of such affidavits, if sufficient 
cause be shown in the petition and affidavit. Any law, usage or custom, 
to the contrary notwithstanding. 

Affidavit of the Party. 

GEORGIA- irOUjSTO]^ COUNTY. 

JOHN DOE ') Assumpsit in the Superior Gourt^ and Verdict for the 
RICHAKD EOE. 5 . Plaintiff. 

The Defendant in the above-stated case being dissatisfied with the 
Verdict rendered by the Jury, desires an appeal, and being sworn, 
says, that he is advised and believes that he has good cause of Appeal, 
but that owing to his poverty, he is unable to pay the costs and give 
security, as required by law. 

Sworn to and subscribed, 7 
before me, this May 1, 1859. > RiCHARD ROE. 

William H. Miller , Clerk. ) 

An Act to define the liability of Securities on Appeal, on Stay of Execu- 
tion, and for protection of Bail on Recognizance, Bond, N^ote or other 
Contract. — Approved Dec. 20, 1826. 
Security on 356^ In all cases where any person or persons hath heretofore entered hira- 
ne^^ to ha?e" ^^^^ ^^ security on appeal, or for stay of execution, in any case in any court 
control oJ^ ^^ this State, and may subsequently thereto have paid off and discharged 
fi. fa. the execution issuing in such case, it shall and may be lawful for such 
security to apply to the sheriff, clerk, constable, marshal or attorney to 
whom such payment may be made, and procure an entry or certificate to 
be made on such execution that the same was paid by the security, and 



JUDICIARY.— YEEDICT, JUDGMENT, APPEAL. 125 

such security shall thereupon be entitled to the use and control of such 
execution for the purpose of proceeding against his principal. — [See 358.] 

357. Sec. II. In all cases of appeal where security hath been given, How Judg- 
and hereafter given, and hereafter to be tried, it shall and may be lawful entere?m Ad- 
for the plaintiff or his attorney, to enter up judgment against the principal peal cases, etc. 
and the security, jointly or severally, and execution shall issue accordingly, 

and proceed against either or both, at the option of the plaintiff, until he is 
satisfied : Provided nevertheless^ if the execution against the security or 
securities be first paid by him or them, then the execution against the 
principal shall still be of force and under the control of the security or 
securities, until the same be satisfied by said principal. 

358. Sec. III. Where security shall have been given, or may hereafter Security on 
be sfiven for the stay of an execution after iud^ment, execution shall issue ^1'?'^^^^?^®°"" 
as in cases of appeal against the principal and security, jointly or severally, control of 
and proceed and be controlled in like manner. fi, fa. 

359. Sec. IY. When any person or persons hath heretofore or shall Special de- 
hereafter become bail on recognizance, or security on bond, note or other ^^^*^^ ^^y ^^ 
contract, and shall be sued thereon, it shall and may be lawful for such ^^urities^^" 
bail or security on the trial of such case, to make special defence. And 

in case it should appear to the court that one or more of the defendants, 
is or are securities only, and not interested in the consideration of the con- 
tract sued on, then and in such case, verdict and judgment shall be entered 
accordingly, and further proceedings had, and privileges exercised, as 
herein-before prescribed in behalf of the other securities: Provided^ the Disputes be- 
plaintiff shall in no case be delayed by any dispute which may arise tween Defend- 
between the defendants, but the court shall decide the issues, and the ants not to de- 
verdict which may have been finally rendered on the issues between the ^^^ riamtift. 
defendants shall relate back to the time of the verdict and judgment in 
favor of the plaintiff. 

360. Sec. V. In all cases in which any person or persons hath hereto- Eights of 
fore become security in the manner herein-before specified, and judgment those who 
has been rendered against him or them, and execution has been issued ^^^ Wnme 
accordingly, in which they may be able to show that he or they were security, 
security only, and as such hath or have paid off and discharged such exe- 
cution, such security or securities shall have the benefit thereof, and power 

to control the same, for the purpose of indemnifying himself or themselves 
out of the property of the principal. 

361. Sec. VI. When any security to any note, bond or obligation. Proof of being 
shall subscribe himself as security, such statement appended to his name security, how 
on the said note, bond or obligation, shall be held and taken as good evi- ^^ beentered 
<'lence of his being security, and the plaintiff shall sue out original and ^p. 
mesne process against him accordingly. — [See 364.] 

special Defence by Security. 

And now at this term comes Charles Smithy by his attorney, James 
A. Pringle^ and for matter of Special Defence, says that he signed the 
Note, the subject-matter of the Plaintiff's demand as security only, 
although he omitted to insert the word security to his name at the 
time of signing said Note. And said Defendant avers that he is no 
way, (nor was he at the time of signing said Note,) interested in the 
consideration thereof. Wherefore, Defendant prays that the Judg- 
ment and Execution rendered in said case, may recognize him as Se- 
curity. And this Defendant is ready to verify, etc. This May 1, 1859. 

James A. Pkingle, Att'y pro Charles Smith. 



126 JUDICIAKY.— YERDICT, JUDGMENT, APPEAL. 

An Act to define the liability of Endorsers of Promissory NTotes and other 
Instruments, and to place them upon the same footing with Securities. — 
Approved Dec. 26, 1826. 
Endorsers put 3^2. From and after the passage of this act, that the practice hereto- 
footinff ot'^e-^'^'^^ required of making a demand of the makers of promissory notes and 
curities ; no- Other instruments, for the payment and performance of the same, and their 
tices to En- giving notice of such demand within a reasonable time to the endorsers of 
dorsers unnec- gaid promissory notes and other instruments, shall cease and become 
essary. entirely unnecessary to bind said endorsers. And whenever any person 
whatever endorses a promissory note or other instrument, he shall be 
held, taken and considered as security to the same, and be in all respects, 
bound as security, until said promissory note or other instrument, is paid 
off and discharged ; and shall be liable to be sued in the same manner and 
in the same action with the principal or maker of said promissory notes or 
other instruments. Any law, practice or usage to the contrary notwith- 
Bank Notes standing : Provided always^ that nothing herein contained shall extend to 
excepted, any promissory notes which shall be given for the purpose of negotiation, 
or intended to be negotiated at any chartered bank, or which may be de- 
posited in any chartered bank for collection : And provided also, that 
nothing contained in this act shall be consti'ued as to prevent the endorser 
from defining his liability in the endorsement. 
Security may 363. Sec, II. Any security or endorser may, whenever he thuiks proper, 
require coi- after the note or instrument becomes due, require the holder to proceed to 
lection. collect the same ; and if he should not proceed to do so within three months, the 
endorser or security shall be no longer liable. — \_See 366.] 

An Act to alter and amend an act, entitled an act '■' to define the liability of 
Securities on Appeal, on Stay of Execution, and for the protection of Bail 
on Recognizance, Bond, Note, or other contract. — Approved Dec. 26, 1831. 
Whereas., doubts exist whether the security or securities, against whom 
judgment has been rendered and execution has issued accordingly, upon any 
contract, bond or note, since the passage of the above-recited act, can have le- 
gally, the control of the execution, where the same has been paid off by such 
security or securities, (and they have neglected to make special defence at the 
trial,) to indemnify themselves out of the property of the principal ; for rem- 
edy whereof — 
Security pay- 364. Pe it enacted^ That from and after the passage of this act, it shall and 
ing ofi fi. fa. may be lawful for any person or persons who have heretofore become security 
may have the Qj^ any note, bond or other contract, and not interested in the consideration 
g|.g ' thereof, and judgment has been rendered against them, and execution issued ac- 
cordingly ; and such security or securities have been heretofore compelled to 
pay off such judgment or execution, he, she or they shall be entitled to the con- 
trol of the same, for the purpose of remunerating him, her or them out of the 
What Security property of the principal or principals : Provided always^ that it shall be made 
must prove, satisfactorily appear to the court from whence the execution issued, that such 
person or persons assuming to have the control of any judgment or execution 
as aforesaid, were bond fide security or securities only, upon the original bond, 
note or contract which was the foundation of the judgment and execution. 
Where no 365. Where any security or securities as aforesaid, shall fail at the trial of 
Special De- ^^^ note, bond or other instrument, upon which he, she or they were security 
made. ^'^ securities, to make special defence thereof, it shall be lawful for such secu- 
rity or securities to take control after payment thereof, of the said fi. fa. after 
complying with the requisitions of the first section of this act. And that all 
laws and parts of laws, militating against this act, be and the same are hereby 
repealed. 



JUDICIARY.— VERDICT, JUDGMENT, APPEAL. 127 

An Act declaring and making certain the law defining the liability of Endor- 
sers and Securities to Promissory Notes and other Instruments, when the 
holder thereof shall fail to proceed to collect the same after notice. — Ap- 
proved Dec. 26, 1831. 

Whereas, the legislature of this State, did on the twenty-sixth of Decem- 
ber, 1826, pass an act, entitled " an act to define the liability of endorsers of 
promissory notes and other instruments, and to place them upon the same 
footing with securities;'' by the second section of which act, it is provided, 
that " any security or endorser may, whenever he thinks proper, after the note 
or instrument becomes due, require the holder to proceed to collect the same; 
and if he should not proceed to do so within three months, the endorser or se-" 
curity shall be no longer liable." And whereas, the constitutionality of said 
second section is doubted, by reason of its departure from the title of said bill ; 
for remedy whereof — 

366. JBe it enacted, That in every case which may hereafter arise, where Holder of 

the security or endorser of any promissory note or other instrument, after Note, etc., 

the same has or shall become due, has required or shall hereafter require the™"? 'I^^^ 

holder thereof to proceed to collect the same, and the said holder has not pro- nionths after 

ceeded, or shall not proceed, to do so, within three months after such notice or notice or Se- 

requisition, the endorser or security shall be no longer liable. curity dis- 

^ ' J b charged. 

An Act to provide a remedy for Endorsers against all prior Endorsers and 
the Makers of Promissory Notes and other Contracts, in certain cases therein 
mentioned. — Approved Dec. 21, 1839. 

367. Sec. I. De it enacted, That from and immediately after the passage Endorser of 
of this act, it shall and may be lawful for all persons who shall hereafter be- Bank Note 
come endorsers on any promissory note, bond or other contract, made in the to^^ave ^con- 
face thereof payable at any chartered bank, or which shall be negotiated at any trol against 
chartered bank, or deposited there for collection. And where said endorsers Maker and 
are not interested in the consideration thereof, and judgment has beeu rendered P^^i^r Endors 
against them, and execution has been issued thereon accordingly ; and where ^^^' 
such endorser or endorsers, shall hereafter be compelled to pay off such judg- 
ments or executions, he, she or they shall be entitled to the full control of each 

and every judgment or execution that shall or may be founded upon the same 
instrument, as against the makers thereof and all prior endorsers thereon, for 
the purpose of reimbursing and remunerating him, her or themselves, out of 
the property of said maker and endorsers : Provided, the person applying for j£ j^g -^^ ^^^ 
such control shall make it appear to the court from whence the execution is- interested in 
sued, that he was only endorser thereon, and not interested in the considera- the considera- 
tion of said contract, and that he has bond fide paid off and discharged the *ij",^^ ^^^^ 
judgment or execution that has been rendered or issued against him, and all ' ' 

costs on the other judgments. 
Sec. II. [Repealing section.] 

An Act to prescribe the mode of signing Judgment and issuing Execution 
against Endorsers in certain cases. — Approved Dec. 27, 1845. 

368. Sec. I. De it enacted, That from and after the passage of this act, Judgment 
in all cases where one or more persons are endorsers upon any bill-of-ex- against En- 
change, promissory note or other instrument in writing, aud separate suits *^.^^"^®^"' *^ ^P^' 
may be prosecuted against such endorsers, in any court of this State, it shall ^^ ^ 

be the duty of the plaintiff or his attorney in signing judgment in such suits 

against such endorsers, to designate and identify the contract in which such T'^'j?^" ^?\ ^ 

judgment is rendered, and that execution shall issue accordingly. ment. 

Sec. II. All laws and parts of laws militating against this act, be and the 
same are hereby repealed. 



128 JUDICIARY.— VERDICT, JUDGMENT, APPEAL. 

Judgment. 

Whereupon, it is ordered, considered and adjudged by the Court 
here, that the Plaintiff do recover of and from the Defendant, i\iQ first 
Endorser on a Promissory Note^ made and executed by Charles Smith 
to Robert West^ on the fii^st day of May^ eighteen hundred and fifty- 
seven^ for the sum of five hundred dollars^ and due ten days after date, 
the sum oi five hundred dollars for his principal debt, etc. 

An Act to point out a regular and definite Rule for the priority of Judgments 
obtained in the several Courts of this State. — Approved Dec. 13, 1810. 
Judgments of 369. Sec. I. From and after the passing of this act, all judgments ob- 
ihe several tained in the superior, inferior or justices' courts of this State, shall be entitled 
eaual^dio-nitv ^^ ^^^ right or claim of any money received by the sheriffs, coroners or con- 
All the ''prop- stables, agreeably to the date of such judgment or judgments. And that all 
ertyof tbe the property belonging to the defendant or defendants, shall be bound and 
Defendant subject to the discharge of the first judgment or judgments, obtained in either 
bound. ^^ the aforesaid courts; [see 371 :] Provided, the demand of such right is 
made before any of the aforesaid officers have paid the money over to the 
plaintiff in interest. Any law, usage or custom to the contrary notwithstand- 
ing. 

Notice to Officers. 
'[To Madison Marshall. Sheriff of said County. 

Houston County. j t m j 

You are hereby notified that I claim and demand so much of the 
money in your hands, arising from the Sale of the property of John 
Doe as will satisfy 2^fi.fa. in my favor against said John Doe^ from the 
Justices' Court of the (619^!^) District G. M. of said County, herewith 
handed to you. This May 1, 1859. 

EiCHARD EoE, PPff in Fi. Fa. 

An Act explanatory of the several Judiciary Laws of this State. — Approved 

Dec. 7, 1812. 

370. No part of the judiciary laws of this State shall be so construed as 
to require the renewal of any judgment as heretofore practised, or in any 
other manner whatever. — [_See 373.] 

An Act to amend the 26th section of the Judiciary Act, passed 16th day of 
December, It 99. And also to prevent a fraudulent enforcement of Dor- 
mant Judgments. — Approved Dec. 19, 1822. 

A contrariety of decisions having taken place in the different circuits of this 
State, as to the time when the property of the party against whom a judg- 
ment is entered shall be bound. And dormant judgments, by being collusively 
kept open, or made the instruments of fraud on innocent purchasers, and often 
operate oppressively on vigilant and hond fide creditors — 
How property 371. De it enacted., That from and after the passing of this act, all prop- 
of Defendant erty of the party against whom a verdict shall be entered and a judgment 
bound, on signed thereon, in conformity to the provisions of the twenty-sixth section of 
•' "= ■ said act of 1799, shall be bound from the signing of the first judgment, m 

cases where no appeal is entered; but in cases where an appeal is entered, 
How pronertv ^^^^'^''^ ^^® ^'^^^ verdict. The property of the party against whom the verdict 
bound upon '^ rendered shall [nof] be bound except from the signing of the judgment on 
Appeal. the appeal, except so far as to prevent the alienation by the party of his, her 



JUDICIARY.— VERDICT, JUDGMENT, APPEAL. 129 

or their property between the signing of the first judgment and the signing of 
the judgment on the appeal. 

372. Sec. II. All judgments signed on verdicts rendered at the same term Judgments to 
of the court, be considered, held and taken to be of equal date. And no be considered 
execution founded on said judgments, obtained at the same term, as aforesaid, ^^ equal date, 
shall be entitled to any preference, by reason of being first placed in the hands 

of the officer. 

An Act to be entitled an act to amend the third section of an act passed 19th 
day of December, 1822, entitled "an act to amend the twenty-sixth section 
of the Judiciary xVct, passed the 16th day of December, 1799." And also, 
to prevent a fraudulent enforcement of Dormant Judgments. — Approved 
Dec. 22, 1823. 

373. All judgments that have been obtained since the said 19th day of Certain Judg- 
December, 1822; and all iudgments that may be hereafter rendered in any^^^'^f^ declar- 
of the courts of this State, on which no execution shall be sued out; or which 
executions, if sued out, no return siiall be made by the proper officer for 
executing and returning the same, within seven years from the date of the 
judgment, shall be void and of no effect. — [_See Sth sec. stat. Lim.'] 

»S74. Sec. II. When any judgment or execution has been declared void Certain Judg- 
and of no effect by the construction given by any of the courts to the said ments and 
third section of said act, the said iud^ment and execution so declared void and Executions 
of no effect, shall and is hereby declared to be in as full force and effect as 
though the said act had not been passed. 

Sec. Ill, The said third section of the act passed on the said 19th day of 3d s. act of 
December, 1822, is hereby repealed. 1822 repealed. 

An Act to authorize the assignment and transfer of judgments and executions. 
And to make certain and uniform the practice with regard to the same. — 
Approved Dec. 22, 1829. 

375. From and after the passage of this act, it shall and may be lawful for Judgments 
the plaintiff in any judgment or execution, to sell or transfer the same by .^^^d Execu- 
written assignment or control ; and said sale or assio-nment shall not be con- ^l^^'^s ^'"^7 be 
sidered a discharge or satisfaction of said execution, but the assignee may pro- 
ceed to collect the same for his own use and benefit, in as full and ample a 

manner as the plaintiff could have done if no such transfer or assignment had 
been made. 

376. Sec. II. Nbthing in this act contained shall be construed as to authorize Not if paid off 
the collection of any execution which may have been paid off by the defendant ^7 -^®^*^'^^^'^*- 
or his agent, and kept open for the purpose of defrauding other creditors. 

' Transfer of Execution. 

For value received, I hereby transfer and assign to Charles Smithy 
this writ oi Feri Facias against Richard Roe .^ and the judgment upon 
which it is founded, without recourse on me ; this May 1, 1859. 

John Doe, Plaintiff. 

An Act to prevent personal property, which is the subject of an action of 
Trespass or Trover, from vesting in the Defendant or Defendants to such 
action, by virtue of a recovery and judgment by the Plaintiff, except so far 
as to be subject to be sold under the execution which shall or may issue 
upon such judgment of the said plaintiff, obtained by him in the said action 
of Trespass or Trover. And to make such property first liable to the pay- 
ment of the Damages recovered in said action. — Approved N^ov. 25. 1830. 
9 



130 JUDICIARY.— YERDICT, JUDGMENT, APPEAL. 

How far aver- 377. From and immediately after the passing of this act, when a verdict for 
diet inTres- damages shall be found or rendered, in fa-^or of a plaintiff in trover or trespass, 
pass or Tro- ^^ ^ iudojment shall be signed thereon, the said verdict and judgment shall 

the property ^^^^ have the effect to change the property which is the subject-matter of the 
said suit or action, or to vest the same, or any part thereof, in the defendant 
or defendants to the said suit or action of trespass or trover, until after the 
damages and costs recovered by the plaintiff in such action, are paid off and 
discharged, except so far as to subject the said property to be sold under and 
by virtue of an execution issuing on said judgment in said action of trespass 
or trover, and to make the same liable to the payment of the damages and 
cost recovered in said action. 

Former Judg- 378. Sec. II. No judgment obtained against the said defendant to such 

ment no lien, suit or action of trespass or trover, prior in point of time to the said judgment 
^*^- so obtained by the said plaintiff in such action of trespass or trover, shall have 
any lien or binding force on said property which is the subject-matter of such 
action of trespass or trover, until after the damages and costs recovered by 
such verdict and judgment of the plaintiff in such action of trespass or trover, 
are first paid off and discharged. 

Sec. III. All laws and parts of laws which militate against this act, are 
hereby repealed. 

An Act directory of the mode of entering up Judgment on Official or Volun- 
tary Bonds. — Approved Dec. 30, 1847. 
Judgment for 379. Sec I. Be it enacted, That from henceforth all judgments rendered 
amount of against the obligor or obligors of any bond, whether official or voluntary 
^^ ^^ ■ bonds, shall be for the amount of damnification found by the verdict of the 
jury, and not for the penalty thereof, as has been decided in some of the 
courts of this State. 
Successive 380. Sec. II. Until the penalty of said official or voluntary bonds has 
Judgments j^g^j^j exhausted by previous recoveries and satisfaction thereof, no person 
unuf the pen- ^§8''^®^^^ ^^ injured by the conduct of any one of the obligors, shall be pro- 
alty is ex- hibited from suing said [bond] or bonds; nor shall any previous recovery 
hausted. thereon be held as a bar to such subsequent suit, until the person pleading it 
shall prove that recoveries have been had to the extent of the penalty of such 
bond : Pronided, nothing herein contained shall be construed to affect any 
cause heretofore decided. 

An Act to perfect service of Scire Facias on absent Defendants by publi- 
cation, for the purpose of reviving Dormant Judgments. — Approved Feb. 
8, 1850. 
Dormant 381. Sec. I. Be it enacted, That from and after the passage of this act, 

Judgm't how whenever any judgment obtained in any of the courts of this State, is or shall 
revived ag st ^g(>QpQe dormant, and the defendant or defendants do or shall reside without 
Defendant. ^^^ jurisdictional limits of this State, that said judgment may be revived against 
said absent defendant or defendants, by such process as is usual in case the 
defendant or defendants reside within the State : Provided always, that the 
defendant or defendants be served with a scire facias by publication in some 
public gazette of this State, once a month for four months, previous to the 
term of the court at which it is intended to revive said judgment; which 
service by publication, shall be as effectual in all cases, as if the defendant or 
defendants had been personally served. 

Sec. II. All laws and parts of laws militating against this act, be and the 
same are hereby repealed. 



JUDICIARY.— BAIL IN CIVIL CASES. 131 

An Act to limit the lien of Judgments, rendered in any of the Courts of this 

State. — Approved Jan. 22, 1852. 

382. Sec. 1. Be it enacted, That from and after the passing of this act, no Property bona 
judgment rendered in any of the courts of this State, shall be enforced by the ^^^^l^^YId^- 
sale of any property, real or personal, which the defendant has sold and con- j^^gj^^ ^^^ g^^^j. 
veyed to a purchaser for a valuable consideration and without actual notice ofject to be lev- 
such judgment : Provided, snoh purchaser, or those claiming under him, by ied upon and 
such sale and conveyance, have been in peaceable possession of such real estate ^^^' 
for four years, and of such personal property for two years before the levy 
shall have been made thereon. — [And see 29th sec. Stat. Limi] 

Sec. II. That all laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

Judgment against an Executor or Administrator where the plea 
of plene administravit is sustained. 

Whereupon, it is considered bj the Court here, that the plaintiff 
recover against the defendant, the sum of one hundred dollars for his 
principal debt; the sum of twenty dollars for his interest up to this 
date, and the sum of fifteen dollars for his costs and charges, in this 
behalf laid out and expended ; to be levied of the goods and chattels, 
lands and tenements of the Testator (or Intestate), which shall here- 
after come to the hands of the defendant to be administered ; and the 
defendant in mercy, &c. Judgment signed this May 1, 1859. 

Judgment Quando Acciderint. 

Whereupon, it is considered by the Court here, that the plaintiff 
recover against the defendant, the sum of one hundred dollars for his 
principal debt, the sum of twenty dollars for his interest up to this 
date, and the sura of fifteen dollars for his costs and charges, in this 
behalf laid out and expended ; to be levied as to the sum of fifty dol- 
lars, of the 2:oods and chattels, lands and tenements of the Testator (or 
Intestate) now in the hands of the defendant, to be administered, and 
as to the balance, to be levied off the goods and chattels, lands and 
tenements of the Testator (or Intestate) which shall hereafter come to 
the hands of the defendant to be administered; and the defendant in 
mercy, &c. Judgment signed this ifay, 1859. 



BAIL. 

383. Sec. XIII. In all cases where bail is requirable, and the plaintiff in Pl'ff must 
any action shall require bail, such plaintiff shall make affidavit before any make Oath of 
judge, justice of the inferior court, or justice of the peace within this State, *he amount 
(or any judge or justice of a superior court of any one of the United States, ^^i«^^»-®*c. 
shall have annexed thereto the seal of the State from whence it shall come, 
and a certificate of the governor, certifying that the person taking such affidavit 
is one of the judges or justices of a superior court of that State,) of the amount; 
claimed by him ; and that he has reason to apprehend the loss of the said sum, or Subject mat- 
some part thereof, if the defendant or defendants is or are not held to bail. Which ter.of Affida- 
affidavit shall be filed in the clerk's office, and copies thereof affixed, to tke ^^*' 



1S2 JUDICIARY.— BAIL IN CIVIL CASES. 

original petition and process, and to the copy or copies thereof. And the 
Am't tobeen-anriount sworn to shall be endorsed on the petition and process. 

dorsed. 334^ Sec. XIV, When any civil process shall issue out of any of the said 

Sheriffs duty, courts, whereby bail shall be required to be taken in manner aforesaid, of any 

person or persons, to answer any action in any of the said courts, the 

sheriff or other officer shall take a bond with one or more sufficient security 

or securities, for double the sum sworn to, and shall return such bond, with 

the petition and process. And in case the sheriff, or other officer, shall fail or 

Sheriff made neglect to take such bail, or the bail taken shall be deemed insufficient by the 

Special Bail court, on exceptions taken thereto and entry thereof made, at the first term 

^^(^^^^^ to which the said petition and process shall be returned, such sheriff or other 

officer and his or their security, or securities, in either of the said cases, shall be 

deemed and stand as a special bail; and the plaintiff may proceed to judgment 

according to the provisions of the act herein-after mentioned. And in all cases 

Defendant to where any defendant or defendants, of whom bail shall be required, shall refuse 

be committed to give good and sufficient bail, it shall be the duty of such sheriff or other officer 

when he refu- ^^q commit such defendant or defendants to the common jail of the county; or 

*^^BaiP^^ if there should be no jail in the county, or the same shall be insufficient, it shall 

and may be lawful for the said sheriff or other officer to confine such defendant or 

defendants in some private house. Nevertheless, such person or persons shall 

Defence ^® allowed all the benefits of appearance and defence, as if he, she or they 

allowed. were personally present ; and shall not be discharged out of custody but by 

putting in bail, or by order of court. 

385. Sec. XV. All bail taken according to the directions of this act shall 
All Bail ^® deemed, held and taken, as special bail, and as such be liable to the re- 
special, covery of the plaintiff. But the plaintiff, after final judgment, shall not take 
Ca. sa. must out execution against such bail, until a capias ad satisfaciendum shall be first 
be issued issued thereon, and the principal cannot be found. And shall also issue a 
against De- scire facias, returnable to the said court, which shall be served on the bail, 
Sd fa. against ^^ least twenty days before the return thereof. And after the return of such 
Bail. capias ad satisfaciendum against the principal, and scire facias against the 
bail, and judgment thereon, execution may issue against the principal and bail, 
or either of them, or either of their estates, unless the bail shall surrender 
the principal at, or before, entering up final judgment on the scire facias, 
either in open court, in term-time, or to the sheriff of the county in which such 
principal shall reside, at any time in vacation. And it shall be the duty of 
the court to order such principal into the custody of the sheriff; and the duty 
of the sheriff, in time of vacation, to receive into his custody such principal, 
and in either case, to commit him, her or them to jail according to the direc- 
tions of this act. Any law, usage or custom, to the contrary notwithstanding. 

Affidavit requiring Bail. 

STATE OF GEOKGIA, i In person appeared before the undersigned, John 
Houston County. ^ Dq^^ ^]^q after being sworn according to law, says, 
that Richard Roe, of said county, is justly indebted to him, the sum of 
five hundred dollars besides interest, (by Promissory Note past due.) And 
that he, deponent, has reason to apprehend the loss of the said sum, 
or some part thereof, if the said Richard Roe be not held to bail. 

Sworn to and subscribed, "j 
before me, this May 1, 1859. v JOHN DOE. 

James Mack, J. P. ) 

Note. — The Agent or Attorney may make the aflSdavit to hold to Bail. Bail maybe re- 
quired pendente lite. Bail may also, be required where the debt is not due. And on 
he Sabbath day. 



JUDICIARY.— BAIL IN CIYIL CASES. 133 

Endorsement on the Petition and Pi^ocess, 

Sheriff, take good Bail in the sum of one tho^lsand dollars. 

James A. Pringle, PVff's Atfy. 

Bail Bond. 

STATE OF GEORGIA, \ We, Richard Roe as principal, and Charles Smith 
Houston County. j as security, hereby acknowledge ourselves held 
and bound to John Doe^ and his assigns, in the sum of one thousand 
dollars — subject to the following conditions — 

The conditions of the above obligation are these: whereas, a civil suit, 
{Assumpsit^) requiring Bail, at the instance of John Doe against Richard 
Roe^ returnable to the Superior Court to be held in and for said County, 
on the fourth Monday iii October next^ for the sum of Jive hundred dollars, 
hath been served on said Richard Roe, by the Sheriff of said County : 
now, should the said Richard Roe, in case he be cast in said suit, well 
and truly pay and satisfy the condernnation of the Court, or render his 
body to prison in execution of the same, in terms of the law in such 
case made and provided ; and upon failure thereof, the said Charles 
Smith will pay the debt and costs for him, then the above obligation to 
be void, otherwise, of force. This 3fay 1, 1857. 

Approved — Kichard Eoe, Prw. [L S.] 

James Mack, J. P. Charles Smith, SecHy. [L. S.] 

Exceptio7is to the Bail Bond. 

At the return term of said action, comes James A. Pringle, Plaintiffs 
Attorney, and says that the Bail taken in said case is insufficient in 
this, to wit, [here set out distinctly the objections to the BailJ] Wherefore, 
Plaintiff prays, that Madison Marshall, Sheriff of said County, and his 
securities, be deemed and stand as Special Bail, in said action. 

Capias ad satisfaciendum. 

state of GEORGIA, ) Xo all and singular the Sheriffs of said State. 

Houston County. J We Command you, that you take the body of 
Richard Roe, if to be found in your County, and him safely keep so 
that you have his body before' the Superior Court to be held in and for 
said County, on the fourth Monday in Ajrril next, at the Court-house in 
Perry, then and there to satisfy John Doe the sum o^ five hundred dol- 
lars, for his principal debt, the sum oi forty five dollars for his interest, 
and the sum of fifteen dollars for his costs, which lately in our said 
Court said John Doe recovered against him said Richard Roe, by reason 
of the non-performance of certain promises by the said Richard Roe 
heretofore made, whereof the said Richard Roe is convicted and liable 
as appears of record, besides your fees for this service. Herein fail 
not, and have you then and there this writ. 

Witness, the honorable Henry G. Lamar, Judge of said Court, this Octo- 
her 24., 1859. William H. Miller, Cleric. 

Return by the Sheriff on the back oj^ the Writ. 

The Defendant not to be found in this County. This October 80, 1859. 

Madison Marshall, Sheriff. 



134 JUDICIARY.— BAIL IN CIYIL CASES. 

Scire Facias against Bail. 

STATE OF GEORGIA, ) m ■, ai ■ rr r^ - -, r, n, ' 

Houston County. [ ^0 the Sheriff of said County—Greeting. 

Whereas, at the April Term of the Superior Court of said County, 
eighteen hundred Siud fifty-nine, Joh^i Doe commenced his action of ^s- 
sumpsit against Richard Roe^ and at the commencement of said action, 
said John Doe filed his affidavit requiring Bail And whereas, Charles 
Smith, of said County became the Bail of said Richard Roe by entering 
into Bond under his hand and seal, with said Richard Roe ; which Bond 
bears date the first day of May eighteen hundred d^nd fifty-seven, and 
is for the sum of one thousand dollars, with the following conditions — 
[iiere set out the conditions of the Bond verbatim ;] which Bond is here 
in Court to be shown. And whereas, at the April Term of said Court, 
eighteen hundred and fifty-eight, a verdict was rendered in said action 
of Assumpsit, in favor of the Plaintiff against the Defendant, for 
the sum of five hundred dollars, besides interest and costs, upon 
which verdict judgment was entered up. And whereas, the De- 
fendant having failed to satisfy the condemnation of the Court a writ 
of Capias ad Satisfaciendum was issued against him, upon which writ 
Madison Marshall, Sheriff of said County, has made the return of " the 
Defendant not to be found in this County." You are therefore, hereby 
required to make known to the said Richard Roe and Charles Smith, that 
they be and appear at the next Superior Court to be held in and for 
said County, on the fourth Monday in October next, then and there to 
show cause, if any they can, why judgment should not be rendered 
against them on said Bond, in favor of the Plaintiff, according to the 
statute, in such case, made and provided. 

Witness, the honorable Henry G. Lamar, Judge of said Court ^ 
this August 4, 1859. William H. Miller, Clerh 

Surrender of Principal by Security to the Sheriff^. 

STATE OF GEORGIA, ) J hereby acknowledge that I have received of 
Houston County. j" Charles Smith the body of Richard Roe, for whom 
he is Bail in an action of Assumpsit pending in Houston Superior Court ; 
in which case John Doe is Plaintiff and said Richard Roe Defendant. 
The surrender of the Defendant is in discharge of the Bail Bond entered 
into by said Charles Smith with said Richard Roe, in said case. This 
June 1, 1869. Madison Marshall, Sheriff. 

Note. — The surrender of the Principal to the Sheriff by the Security, (in vacation,) au- 
thorizes the Security to move the Court in term-time, that an Exoneretur may be entered 
on the Minutes. If the surrender be made to the Court, the Exoneretur should be moved 
and entered on the Minutes at the time of the surrender. 

Exoneretur. 

JOHN DOE ) 

«s- >• Assumpsit and Bail. 

RICHARD ROE. ) 

On reading and filing the acknowledgment of the Sheriff, of the sur- 



JUDICIARY.— BAIL IN CIVIL CASES. 135 

render to bim^ in vacation, of the Defendant, by his Security Charles 
Smithy in discharge of his obligation —it is ordered, that said Security 
be exonerated and discharged from his liability as Bail, and that an 
Exoneretur be entered on the Bail Bond in said case. 

Or thus, — The Defendant in this cause having been surrendered 
into the custody of the Sheriff, in vacation, (or here in Court, as the 
case may be,) by his Bail — it is ordered, etc. < 

An Act to extend the powers of Sheriffs and Constables in certain cases. 
— Approved Dec. 19, 1818. 

386. Sec. I. It shall be lawful for sheriffs in all cases where a bail or Sheriff may 
criminal process is placed in their hands, and the person against whom it ^ ^2^ ^ ^^^' 
may be, is moving about from one county to another, for the said sheriff, anywbeve in 
or his deputy, to folloAv the said person or persons, into any county in this the State. 
State, and serve the said process. 

387. Sec. II. It shall be lawful for any constable, and he is hereby re- Constable 

quired, in all cases where a bail or criminal process is placed in his hands, .J?^^ follow 
• • itinerant uer- 

and the person against whom the same may be, is moving about from one g^^j^ anywhere 

district to another, to serve the said process in any district within the in the county. 

county, in which he may be constable. 



An Act to amend the Judiciary Law of this State, passed the 16th day 
of February, in the year 1799 ; so far as to authorize the issuing of Bail 
Process in certain cases. — Approved Nov. 8, 1820. 

Whereas^ great inconvenience has resulted for the want of a law au- 
thorizing plaintiffs, pending actions, to hold the defendant to bail ; for 
remedy whereof — 

388. J?e it enacted^ That in cases where an action is commenced and ^^^^ p^y ^^ 
pending ; or where an action may hereafter be commenced, and no bail ^^quired^m- 
shall have been required at the commencement of said action ; or having 

been required, and has or maybe discharged, and the plaintiff in any such * 

action, pending the same, shall require bail, such plaintiff shall make affi- 
davit before any judge, justice of the inferior court, or justice of the 
peace, within this State, (or any judge or justice of a superior court of 
any one of the United States ; shall have annexed thereto the seal of the 
State from whence it shall come, and a certificate of the governor, certify- 
ing that the person taking such affidavit, is one of the judges or justices 
of a superior court of that State ;) of the amount claimed by him, and 
that he has reason to apprehend the loss of the said sum, or some part 
thereof, if the defendant or defendants, is or are not held to bail ; which 
affidavit shall be filed in the clerk's office of the court in which such action 
is pending, and a copy or copies thereof affixed to the process to be issued Qj^rk's duty 
by the clerk of said court, in which such suit may be pending, and to the 
copy or copies of such process. And the amount sworn to shall be en- 
dorsed on such process and the copy or coiDies thereof. 

389. Sec IL When any such affidavit is made and filed in the clerk's Clerk must an- 
office of the court in which such suit is or may be pending, the clerk °^^ Process, 
thereof shall immediately issue a process in the case, with as many copies as 

there are defendants, annexing a copy of said affidavit to each process and 

copy process; and which process shall be made returnable to the next 

term of said court, after the issuing of the same, and shall be executed Sheriff must 

and returned into court by the sheriff, his deputy, or other proper officer ; ^^^^® Process. 

and when so executed and returned, shall be taken and considered a part 

of the record, in said case. 



186 JUDICIAEY.— BAIL IN CIYIL CASES. 

When Sheriff 390. Sec. III. When the said process and copy affidavit and copy pro- 
must execute cess shall issue as aforesaid, they shall be delivered to the sheriff, or other 
Process. proper officer, who shall be bound to execute the same at any time before 
the sitting of the court to which the said process may be made returnable, 
under the same directions and provisions as are pointed out in and by the 
said judiciary act, passed in the year 1799. 
How Deft ^91. Sec. IV. All and every defendant or defendants, when arrested 
dealt with, by virtue of said process, shall be dealt with by the officer arresting him, 
her or them, in the same manner as would have been done had such de- 
fendant or defendants been arrested at the commencement of said action, 
on bail process ; and shall be discharged from said arrest in no other 
manner than he, she or they, could in case such arrest had been made on 
Bail bound as^^^H'^''^^®^'^^ ^^ the commencement of said suit. And all bail taken ac- 
if required at cording to the directions, and under the provisions of this act, shall be 
the commence- held bound and liable in the same manner he, she or they, would have 
ment of the i>een bound and liable, had he, she or they, become bail at the time of 
ac ion. ^^^ commencement of said action. And the plaintiff or plaintiffs in said 
action, shall be and they are hereby authorized to proceed in the same 
manner against the defendant or defendants and bail, or either of them, as 
I is pointed out in and by the said judiciary act passed in the year 1799. 
No delay al- 392. Sec. Y. The defendant or defendants so held to bail, in manner 
lowed. heretofore pointed out in this act, shall not, by reason thereof, be entitled 
to any delay or continuance, but the case shall proceed to trial as though 
bail had been required and taken at the commencement of the case. And 
Non-resident when there are more defendants than one, in such suit, some of whom re- 
Defend't how side out of the county in which such suit is pending, a second original pro- 
served, cess, and copy or copies may issue, returnable to the court in the county 
in which such suit or action is or may be pending, which when served by 
the sheriff of the county where such defendant or defendants reside, or 
His liability, by other proper officer, the said defendant or defendants shall be subject and 
liable to the same provisions and restrictions as he, she or they, would 
have been had the bail process issued at the commencement of said case. 

Bail Pendente Lite. 

[For the formal parts of this affidavit, see " Affidavit requiring Bail,"] 
then add, "-That at the commencement of said action deponent did not 
require Bail ; (or the Bail required at the commencement of said action, 
having been discharged, as the case may be.) And that he deponent, 
has reason," etc. 

A]^ Act requiring Sheriffs and Constables in any of the Counties in this 
State not having Jails, to convey to the Jail of an adjoining County, 
persons by them arrested on a Writ of Capias ad Satisfaciendum, or 
any legal Process requiring Bail. And to require the Jailers of such 
Counties, on good and sufficient security being given for the Jail-fees, 
to receive and safely keejj such prisoners. — Approved Dec. 13, 1820. 
Arresting Of- 393. The sheriffs and lawful constables in any of the counties of this 
ficer may con- State that are not provided with a jail, be and they are hereby authorized 
vey Defend- ^nd required, to convey persons arrested by them, by virtue of a capias 
Jai^ of^an ad- ^^ satisfaciendum, or other civil process which may require bail, to the 
joining coun- j^ii of any adjoining county ; and to deliver such person or persons to the 
ty. keeper of such jail. Provided, the person or persons so arrested shall re- 

fuse or neglect to give such bail as the officer arresting may be authorized 
to require. 



JUDICIARY.— BAIL IN CIVIL CASES. 187 

394. Sec. II. The keepers of such jail, shall and they are hereby au- Keeper of Jail 
thorized and required, to receive into their care and custody, any person ™"st receive 
or persons delivered to them in conformity to the preceding section, and risoner. 
him or them safely keep until they are delivered from thence according to 

law, or by direction or request of the plaintiff, his agent or attorney ; ^^^- g^^l^y ^ust be 
vided, that the plaintiff, his agent or attorney, shall give bond with suf- ^^^^^^ f^j. 
ficient security to the keeper of such jail, for the jail-fees and weekly maintenance, 
maintenance of the person or persons so delivered to him for safe keeping. 

Bond for Maintenance and Prison-fees. 

STATE OF GEORGIA, | We, John Doe, as principal, and Richard Roe^ 
Houston County. j ^s security, acknowledge ourselves bound unto 
Charles Smithy Jailer of the County of Bibb, in the sum of one hundred 
dollars, subject to the following conditions — 

Whereas, Thomas Jones, of the County of Houston, has been arrested 
(by virtue of a Writ of Capias ad Satisfaciendum, issued from the 
Superior Court of said County of Houston, in favor of ssiid John Doe,) 
and conveyed to the Jail of the County of Bibb, for safe keeping. 
Now, should said John Doe pay the Jail-fees and weekly Maintenance of 
said Thomas Jones, during the time of his confinement in said Jail, 
then this Bond to be void : otherwise, of force. This May 1, 1859. 
Approved — John Doe, principal. [L. S] 

James Mack, J. P. KiCHARD EoE, security. [L. S.] 

Note. — The PlaititiflF must pay the Maintenance of the Prisoner weekly, or he may be 
discharged on Habeas Corpus. 

An Act to amend the Judiciary Law of 1799, in relation to Bail, and also 
to amend an act entitled " an act to amend the Judiciary Law of this 
State, passed the 16th day of February, 1799, so far as to authorize the 
issuing of Bail Process in certain cases," passed the 8th day of Novem- 
ber, 1820, so far as to authorize Agents, Attorneys-in-fact, or at law, to 
hold to Bail in all civil cases. — Approved Dec. 26, 1831. 

395. Sec. I. From and after the passage of this act, it shall and may Agent or At- 
be lawful for any agent, attorney-in-fact, or at law, to hold to bail in all torney may 
civil cases, and under the same rules and restrictions as are pointed out ^^^^ ^^ ^^^^• 
in the before-recited acts on that subject. 

396. Sec. II. All laws and parts of laws militating against this act, are 
hereby repealed. 

An Act to authorize the issuing, suing and executing, Attachments on the 

Sabbath day, in certain cases. — A^jproved Dec. 20, 1834. 

IVhereas, it sometimes happens that persons residing near the lines of 
this State, leave the State on the Sabbath day, and thereby place it out of ' 

the power of their creditors to stop them or their property, to satisfy 
debts owing by them ; for remedy whereof — 

397. Re it enacted, That it shall hereafter be lawful to issue and serve Attachment 
attachments and bail processes on the Sabbath day; in the same manner and Bail may 
and under the same rules, regulations and restrictions, as are now pro- ^e required 
vided for the issuing and serving of the same on other days: Provided^ ^wh^/i^^^' 
the person or persons applying for such attachment or bail process, shall in ^ ^^* 
addition to the oath heretofore required to be taken, swear that he appre- 
hends the loss of his debt, or some part thereof, unless said attachment or 

bail process shall issue on the Sabbath day. 



138 JUDICIARY. -BAIL IN CIYIL CASES. 

398. Sec. II. All laws and parts of laws that militate against this act, 
are hereby repealed. 

An Act to define the mode of taking Bond m cases of Bail in this State. 
— Ajjjwoved Nov. 24, 1841. 
Bail-Bond ^99. Sec. I. From and after the passage of this act all bonds taken in 
payable to cases of bail, in this State, shall be taken payable to the plaintiff in the 
Plaintiff, cause, any law to the contrary notwithstanding. 

An^ Act in relation to proceedings to recover Debts not due. — Approved 

Dec. 27, 1845. 

-Ron r«oTr v^« 400. Sec. I. When a debt is not due, and the debtor is about to 

required be- remove, or is removmg without the limits oi this btate, and oath being 

fore the Debt made by the creditor, his agent, or attorney-in-fact, or at law, of the 

is due. amount of the debt to become due, and that the debtor is about to remove, 

or is removing, without the limits of this State, and that he has reason to 

apprehend the loss of said debt, or some part thereof, if the debtor be not 

Action may be ^^^^ to bail; it shall and may be lawful for the creditor to commence an 

commenced, action or suit at law, and hold said debtor to bail, in the same way and 

manner, and under the same restrictions as where an affidavit is made 

under existing laws. And the bail so taken shall in like manner, be liable 

Judgment ^^ *^^ creditors: Provided always^ that judgment shall not be rendered 

stayed. in ^^J such case until after the debt has become due. 

Affidavit under the above Statute. 

STATE OF GEOEGIA, j Jn person appeared before the undersigned, 
Houston County. j John Doe, who, after being sworn according to 
law, says, that Richard Boe, of said County, is justly indebted to him, 
the sum o^ five hundred dollars^ (by Promissory Note^ to become due.) 
That the amount to become due is the ^\xu\ oi five hundred dollars. 
That said Richard Roe is removing, (or is about to remove, as the 
case may be,) without the limits of this State. And deponent further 
swears, that he has reason to apprehend the loss of said debt, or some 
part thereof, if the said Richard Roe be not held to Bail. 

Sworn to and subscribed, } JOHN DOE. 



before me, this May 1, 1859. 
James Mack, J. P. 



The Declaration. 



STATE OF GEORGIA, ) To the Superior Court of said County. 

Houston Gowniy . J The Petition oi John Doe showeth \X\2i% Richard 
Roe^ of said County, is indebted to your Petitioner in the sum oi five 
hundred dollars^ by Promissory Note, to become due : for that, whereas, 
heretofore, to wit, on the third d^j of April, eighteen hundred eund fifty- 
eight, the sdi\d Richard made his certain Promissory Note, and delivered 
the same to your Petitioner, and which is now here in Court, to be 
shown : whereby by the first day of January, next ensuing the date 
of said Note, and of the commencement of this action, he, the said 
Richard Roe, promised to pay Petitioner, or bearer, the said sum of five 
hundred dollars, for value received, which Note remains wholly unpaid. 
And your Petitioner avers that said Richard Roe is removing, (or is 



JUDICIARY.— BAIL IN CIYIL CASES. 139 

about to remove, as the case may be,) without the limits of this State ; 
wherefore your Petitioner has reason to apprehend the loss of said 
Debt, or some part thereof, if the said Richard Roe be not held to 
Bail. By reason whereof, and by force of the statute in such case 
made and provided, the right of action hath accrued to your Petitioner 
in the premises : wherefore, your Petitioner brings suit and prays 
Process may issue, requiring the said Richard Roe^ personally, or by 
attorney, to be and appear at the next Superior Court to be held in 
and for said County, to Answer j^our Petitioner in an action for Debt 
and Bail. James A. Pringle, Plff^s AWy. 

An Act to authorize the Sheriff to take new Bail where the principal has 
been surrendered, in certain cases, and to make valid certain Bail-Bonds 
taken heretofore. — Approved March 6, 1856. 

401. Sec. I. That in all cases hereafter, where the bail shall or may 
surrender his principal, either in open court in term-time, or to the sheriff New Bail may 
of the county in which such principal shall reside, at any time in vacation, be taken 
and before the principal has been arrested by a capias ad satisfaciendum, '^^^J^^^^ 
it shall be the duty of the sheriff to take new bail, if the bail offered is ijeeri^^&^ren^ 
good ; for the forthcoming of the principal to be arrested with a capias ad dered. 
satisfaciendum^ in said case ; or in default thereof, to pay the debt 

and costs. And all bail heretofore taken, in the cases above mentioned, 
shall be deemed and adjudged to be good and valid in law ; and the bail 
bound in the same way and manner he would have been, if he had become 
bail before the passage of this act. 

Sec II. [Repeals all conflicting laws.] 

Bond under the above Act. 

[For the formal parts of this Bond see " Bail Bond."] 
Whereas, John Doe^ the security of Richard Roe^ defendant, in an 
action of Assumpsit in Houston Superior Court, in favor of Charles 
Smithy (in which action Bail was originally required,) has surrendered 
the body of said Richard Roe, in discharge of his Bail-Bond in said 
action. And whereas, said Richard Roe tenders William Jones^ as 
new and other security, who has been accepted and approved. Now, 
should said Richard Roe well and truly appear and submit to arrest 
on Capias ad Satisfaciendum^ to be issued on the Judgment in said 
action of Assumpsit^ and, on failure thereof, shall pay the Judgment 
and costs in said action ; and, on his failure, said William Jones do 
pay the Debt and Costs for him, then this Bond to be void ; other- 
wise, of force. This May 1, 1859. 

Approved — Richard Roe, prinH. [L. S] 

James Mack^ J. P. William Jones, secHy. [L. S.] 

IN ACTIONS OF TROVER, ETC. 

An Act more effectually to Quiet and Protect the Possession of Personal 
Property, and to prevent taking Possession by fraud or violence. — 
Approved Pec. 25, 1821. 

402. Sec II. When any person who is about to commence an action or Ban i^ actions 
suit at law, or in equity, for the recovery of negroes, or other personalof Trover, etc 
property, such person, his agent or attorney, shall make affidavit that he 

hath reason to apprehend that the said negroes or other personal property, 



140 JUDICIARY.— BAIL IN CIYIL CASES. 

have been or will be eloigned, or removed away, or will not be forthcom- 
ing to answer the judgment, execution or decree that shall be made in the 
case. And. shall also state in his affidavit the value of the same, and the 
amount of hire claimed, if any, and add, that he, she or they, do verily 
and hondjide^ claim the said negroes, or other personal property, or some 
valuable interest therein. A copy of such affidavit shall be annexed to the 
petition, bill, or other process, and the original affidavit filed in the court 
whence such process issues. And it shall be the duty of the sheriff, his 
deputy, or other lawful officer serving such petition, bill, or other process, 
to take a recognizance, with good security, in double the amount sworn 
to, for the forthcoming of such negroes or other personal property, to 

. answer such judgment, execution or decree, as maybe issued or rendered. 

Securifv^ in the case. And such security shall be bound for the payment of the 
eventual condemnation money, and liable to execution, in the same 
manner as securities upon appeals. And. when such affidavit shall be made 
during the pendency of any process, a copy thereof, and of the process or 
subpoena, shall be served in like manner by the sheriff or his deputy, or 
other lawful officer, and the like security taken. And upon the defendant 
refusing to give such security, the property shall be seized and taken by the 
sheriff, or other lawful officer, and delivered over to the plaintiff or com- 
plainant, his agent, or attorney, entering into a like recognizance with 
security. And if such property is not produced or forthcoming, to be 
seized and taken by such sheriff, or other lawful officer, the defendant or 
defendants shall be committed to jail, to be kept in safe and close custody 
until the same is produced, or until he, she or they, shall enter into se- 
curity for the eventual condemnation money, in the nature of security upon 
appeal. 

Affidavit of the Plaintiff. 

STATE OF GEOKGIA, | In person appeared before the undersigned, 
Houston County. j J^/^^ ])qq^ y^ho being sworn, saith that he is about 
to commence^ (or has commenced, as the case may be,) his action of 
Trover^ in the Superior Court of the County aforesaid, against Richard 
Roe^ returnable to the next ensuing term of said Court; for a certain 
Negro man named Jacoh^ of the value of eight hundred dollars^ and of 
the yearly value for hire, o^ one hundred dollars. That deponent does, 
verily and bond fide claim said Negro man as his right and property^ (or 
some valuable interest in said Negro man^ as the case may be.) And 
that deponent has reason to apprehend that said Negro man will be 
eloigned^ (or removed away, or will not be forthcoming, as the case 
may be,) to answer the Judgment in said action of Trover, (or Execu- 
tion, or Decree, as the case may be,) unless said Richard Roe shall be 
required to enter into Kecognizance, agreeably to the statute in such 
case made and provided. 
Sworn to and subscribed, ] 
before me, this May 1, 1859. > JOHN DOE. 

James Mack, J. P. ) 

Declaration in Trover. 

STATE OF GEORGIA, ) r^ , ^ ^ p . -, 

Houston County. \ ^o the Superior Court of said County. 

The Petition of John Doe showeth, that Richard Roe of said County, 
hath damaged your Petitioner in the sura of one thousand dollars : for 



JUDICIARY.— BAIL IN CIVIL CASES. 141 

that jour Petitioner, heretofore, to wit, in the County aforesaid, on the 
first day of January^ eighteen hundred and fifty-eigldy was lawfully 
possessed, as of his own property, of a Negro 7nan named Jacoh^ of yel- 
low complexion^ twenty-five years of age^ of the value of eight hundred dol- 
lars^ and of the yearly value for hire^ of one hundred dollars. And 
being so possessed thereof, your Petitioner afterwards, on the day and 
year above mentioned, in the County aforesaid, lost said Negro man 
Jacob out of his possession. And said Negro man Jacoh^ afterwards, 
on the day and year aforesaid, in the County aforesaid, came to 
the possession of shidi Richard Roe by finding. Yet the Q2Cidi Richard 
i?oe, well knowing the said Negro man Jacob, to be the property of 
your Petitioner, and of right to belong and appertain to him, (but 
contriving and fraudulently intending, craftily and subtly to deceive 
and defraud your Petitioner in this behalf,) hath not as yet delivered 
said Ae^ro 7?icm JacoZ^ to your Petitioner, although often requested so 
to do, but hath hitherto wholly refused so to do. And afterwards, to 
wit, on the day and year aforesaid, in the County aforesaid, said 
Richard Roe converted and disposed of said Negro man Jacob, to his 
own use, to the damage of your Petitioner, two thousand dollars. 
Wherefore your Petitioner brings suit and prays Process may issue, 
requiring the said Richard Roe, to be and appear at the next Superior 
Court to be held in and for said County, to answer your Petitioner in 
an action of Trover. And your Petitioner, etc. 

Simon Wade, PVfs Atty. 

Recognizance, 

STATE OF GEORGIA, | Be it remembered, that on thej^rs^ day of i/ay, 
Houston County. j" eighteen hundred and fifty-eight, we, Richard Roe 
as principal, and Charles Smith as security, both of said County, do 
acknowledge to owe John Doe and his assigns, the sum of sixteen hun- 
dred dollars, subject to the following conditions — 

Whereas, said John Doe has commenced, (or is about to commence, 
as the case may be,) his action of Trover against the said Richard Roe^ 
returnable to the Superior Court of said County, for a certain Negro ' 
man named Jacob, of the value of eight hundred dollars. Now, should 
the said Richard Roe well and truly produce and have forthcoming 
said Negro man Jacob to answer such Judgment (Execution or Decree, 
as the case may be,) as may be issued or rendered against him in said 
action of Trover ; and well and truly pay the eventual condemnation 
money recovered in said case, then this Eecognizance to be void; 
otherwise, of force. 

[Executed in presence of ) 'Rig'RARD ^o^, principal. [L. S.] 
W. H. Miller^ Glerk, S. C. \ Charles Smith, security. [L. S.] 

IN ACTIONS EX DELICTO. 

An Act to authorize Justices of the Inferior Court to grant Orders to 

hold to Bail in cases arising ex delicto. — Approved Feb. 16, 1854. 

403. Sec. I. Be it enacted. That from and after the passage of this Justice of I. 

act, it shall and may be lawful for any justice of the Inferior Court of this ^' ^'^^ ^^'^"' 

Order for 

Bail. 



142 JUDICIAKY.— BAIL IN CIYIL CASES. 

State, to grant an order to hold to bail in all cases sounding in damages, 
whether the case shall be made returnable to the superior or inferior court 
of the county in which such justice may reside. 
Effect of Order 494, Sec. II. That said order when so granted, shall have the same 
so giaa e . £^j.^g ^^^ effect as if granted by a judge of the superior court. 

Sec. III. That all laws and parts of laws, militating against this act, be 
and the same are hereby repealed. 

Order by the Justice of the Inferior Court, 

STATE OF GEORGIA, ) To the Clerk of the Superior Court, and to the 
Houston County. j" Sheriff of said County. 

The Declaration and Affidavit of the Plaintiff having been pre- 
sented to me, you the said Clerk, are hereby required to issue Bail- 
process against the Defendant, in the sum of two thousand dollars. 
And you the said Sheriff are required to execute said Bail-process, 
according to the statute in such case made and provided. 
Witness my hand and official signature^ this May 1, 1859. 

Henry M. Holtzclaw, J. I. C. 

An Act to simplify the proceedings in Bail Cases, and for other purposes 

therein mentioned. — Approved Dec. 21, 1857. 

Process and ^^^' ^^^- ^- Whenever bail shall be required in any case about to 

copy-affidavit be instituted in the courts of this State, it shall be lawful and sufficient to 

must be serv'd serve the defendant with a process and copy of the affidavit, as in cases of 

on Defendant. ^^^ pending the action ; and at the term to which said process is returna- 

Declaration ble, the plaintiff shall file his declaration ; and the subsequent proceedings, 

filed at the ap- shall be as in other cases. 

P^J^^P^^ *'^^- 406. Sec. II. Whenever such process, with a copy of the affidavit 
arreTt Defend- ^-^^nexed, and a copy or copies of such process and affidavit shall be placed 
ant and take in the hands of the sheriff, it shall be his duty to arrest the defendant or 
Bail, etc., as in defendants; to serve him, her or them, with a copy or copies of said pro- 
other cases, (jggg and affidavit, and to deal with him, her or them, as is now required 
by the laws of force in this State, regulating cases where bail is required. 
The proceed- 407. Sec. III. ^N'othing in this act shall be held to repeal any portion 
ings under of the laws heretofore of force, regulating cases in which bail may be 

this act per- j-equired, but shall be construed to be permissive only, and not compul- 
missive not 1. > x ^ ^ x. 

obligatory, sory, as to the form to be used. 
Substantiated 408. Sec. IY. A substantial compliance with this act, as to service 
compliance upon the defendant or defendants, shall be deemed sufficient to authorize 
sufficient, and ^^ ^^gg ^^ proceed, as against such defendant or defendants, notwith- 
cee^d though Standing the bail may be discharged for irregularity in the process, affida- 
Bail discha'rg- vit, copies or service, 
ed for irregu- 
larity. ^^ ^^^ ^Qj. ^i^g protection of Securities and Endorsers, and to authorize the 
issuing of Bail Process in certain cases. — Approved Dec. 22, 1857. 
Surety or En- 409. Sec. I. That when a security or endorser shall make an affidavit 
k^^\ffiHi^ before any judge, justice of the inferior court, or justice of the peace, within 
vit etc upon^'^^'^ State, that he is security or endorser, upon any promissory note, single- 
the doing of hill, or due-bill, or bond, and that he apprehends that the payment of said 
which, holder debt, or some part thereof, will devolve upon himself, if the principal is not 
must coni- \^q\^ to bail, and present the same to the owner (of said note, single-bill, or 
mence sui . (^jj^.j^ju^ ^^ bond,) his agent or attorney, it shall be the duty of said owner, to 
commence suit forthwith, and such affidavit shall take the place of the one 



JUDICIARY.— CLAIM. 



143 



now required of plaintiff; upon which bail process shall issue. And all other 
proceedings shall be the same as are now authorized in bail process [cases.'] 

410. Sec. II. That upon failure of the owner of said promissory note, Or Surety or 
single-bill, or due-bill, or bond, to sue, as herein-before required, the security Endorser dis- 



or endorser shall no longer be held liable for the same, 
trary notwithstanding. 



All laws to the con- 



Affidavit under the above Statute. 

STATE OF GEORGIA, ) In person appeared before the "undersigned, a 
Houston County. j Justice of the Peace^ in and for said County, John 
Doe^ who being sworn saith, that he is Security on a Promissory Note for 
one hundred dollars^ given by Richard Roe to John Smith ; and that 
deponent apprehends that the payment of said iVbfe, or some part 
thereof, will devolve upon himself, if the said Richard Roe is not held 
to Bail. 



Sworn to and subscribed, 

before me, this 3Iay 1, 1859 

James Mack, J. P. 



\ 



John Doe. 



charged from 
liability. 



Claimant 
must make 

Oath. 
Officer must 



CLAIM. 

An x\ct to alter and amend so much of the thirty-second section of the Judi- 
ciary, passed the 16th of February, 1799, as respects Claims of property, 
in the Superior and Inferior Courts of this State. — Approved Pec. 15, 
1821. 

Whereas^ various constructions have been given in the different Courts of 
this State, as it regards Claims of property, which tend to the manifest injury 
of the community, and frequently produced not only injustice to the Plaintiffs- 
in-Execution, but evidently to oppress and harrass them by delays of justice — 
411. Sec. I. Re it therefore enacted^ That when any sheriff or coroner 
shall levy an execution on property claimed by any person not a party to said 
execution, such person shall make oath [see 417,] to said property. And it 
shall be the duty of such sheriff or coroner to postpone the sale, or future exe- return Claim, 
cution of the judgment, until the next term of the court from whence said 
execution issued : Provided, the said execution is or should be levied on per- Land must be 
sonal property, but should said execution be levied on real property, and the t"^^ '^^ *^^ 
same should be claimed in manner aforesaid, then and in that case, it shall be ^^117. ^ ^^® 
the duty of the officer making the levy upon real property, to report the same, 
together with the execution and claim, to the next term of the superior court 
of the county in which the land so levied on shall lie. . And the court to which 
snch claim shall be reported, shall cause the right of property, to be decided 
on by a jury, at the first term, unless special cause be shown to induce said 
court to continue the case for one term and no longer : Provided, the person 
claiming such property, or his agent, or attorney, shall give bond to the sheriff 
or coroner, as the case may be, with good and sufficient security, in a sum 
equal to double the amount of the property levied on, at a reasonable valua- 
tion, to be judged of by the levying-officer, conditioned to pay the plaintiff all Condition of 
damages which the jury on the trial of the right of property, may assess 
against him, in case it should appear that said claim was made for the purposes 
of delay. And every juror, on the trial of the claim of property, either real 
or personal, shall be sworn, in addition to the oath usually administered, to 



Claim to be 

tried at the 

first term. 

Claimant 
must give 
Bond and Se- 
curity. 



the Bond. 

Additional 
Oath as to 
damages. 



144: JUDICIARY.— CLAIM. 

give such damages, not less than ten per cent., as may seem reasonable and 

just, to the plaintiff against the claimant, in case it shall be sufficiently shown, 

Judgment that said claim was made for delay only. And it shall be lawful for such jury 

may be enter- to give verdict in manner aforesaid, by virtue whereof judgment may be entered 

ed up against ^p against such claimant and his security or securities, for the damages so 

hii5 Securities assessed by the jury, and the costs of the trial of the right of property: A^nd 

Burden of provided also, that the burden of proof shall lie upon the plain tiff-in-execution, 

proof on in cases where the property levied on, is at the time of such levy, not in the 

Plaintiff-in- possession of the defendant in execution. 

Claimant not '^^^- ^^^- ^^- Whenever such claim of property may be made in terms 

to discontinue of this act, the person claiming property levied on and returned to the proper 

Claim but court, by said sheriff or coroner, shall not be permitted to withdraw or discon- 

once. tinue his said claim, more than once, without consent and approbation of the 

plaintiff-in-execution, or some person duly authorized to represent such plaintiff; 

but said court shall proceed to the trial of said claim of property in manner 

Jury must aforesaid. And it shall be the duty of the jury to award damages accordingly : 

award dama- A7id provided further^ that either party who may be dissatisfied with the 

. ^^^* verdict of said jury, may enter his, her or their appeal, to a special-jury in the 

may Appeal superior court of the county where said trial shall have been had ; which appeal 

shall be subject to the same rules and regulations as govern in appeals in 

ordinary cases. 

Act of 1799 413. Sec. III. So much of said thirty-second section of the judiciary act 

repealed, of 1799 as regards claims of property, which may militate against this act is 

hereby repealed. 

Claimant's Affidavit. 

STATE OF GEORGIA, ) In person appeared before the undersigned, a 
Houston County. j Justice of the Peace^ in and for said County, Charles 
Smith, who being duly sworn, deposeth and saith, that a certain Negro 
Fdlow named Jacob, of yellow complexion, and twenty-five years of age ^ (who 
has been levied on by Madison Marshall, S her iff of ssiid County, by virtue 
of 3i fieri facias issued from the Superior Court of said County, in favor 
of John Doe against Richard Roe,) as the property of said Richard Roe^ 
is the property of deponent. 

Sworn to and subscribed, ] 

before me, this May 1, 1859. j- , ChARLES SmITH. 

James Mack, J. P. ) 

Claimants Bond for Damages. 

STATE OF GEORGIA, ) We, Charles Smith as principal, and William 
Houston County. \ Jones as security, both of said County and State, 
hereby acknowledge ourselves held and bound to John Doe, Plaintiff- 
in-Execution, in the sum of one thousand dollars, subject to the follow- 
ing condition — 

The condition of the above obligation is as follows — whereas, a cer- 
tain Negro Fellow named Jacob, twenty-five years of age, has been levied 
on by Madison Marshall, Sheriff of said County, by virtue of a fieri 
facias issued from the Superior Court of said County, in favor of John 
i^oe against i?icAarc?^oe,) which Negro Fellow is claimed by said Charles 
Smith, as his property : now, should said claimant, well and truly, pay 
all the Damages which the Jury on the trial of the right of property 
may assess against him, in case it should appear that said claim was 



JUDICIARY.— CLAIM. 145 

made for the purposes of delay, then this obligation to be void, other- 
wise of force. This May 1, 1859. 

Attest — Charles Smith, principal. [L. S.] ^ 

James Mack^ J. P. William Jones, security. [L. S.] 

A^ Act to provide for the trial of Claims of Slaves levied on under Ex- 
ecution. — Approved Dec. 7, 1824. 

414. In all cases where a writ of execution from a justices' court shall j ,. , „^^_ 
have been levied on one or more slaves, and a claim to such slaves shall cution when 
have been interposed, according to the laws in force for the time being, levied on 
such execution and claim shall be returned to the next term of superior Slave, Claim 
or inferior court, whichever may first happen, of the county in which such*^^^ *F*^^ ^" 
execution was issued, and shall be there tried in the same manner as other inferior Court 
claims which by law are or shall be returnable to those courts respectively. 

An Act to define and make certain the mode of assessing Damages, upon 
the trial of Claims of property in" the Superior and Inferior Courts in 
this State. — Ap)proved Dec. 21, 1829. 

Whereas.^ doubts have been entertained whether upon the trial of 
Claims of property, Damages should be assessed upon the amount of the 
Execution, or the value of the property claimed, or upon the amount of 
the claim-bond ; for remedy whereof — 

415. Be it enacted^ That from and immediately after the passage of this ;fjQ^ Pj^^jj^g^g 
act, upon claims of property now pending, or which may be hereafter on Claims are 
pending, in the superior or inferior courts of this State, where damages to be assessed, 
shall be found by [the] jury, the said damages shall be assessed upon the 

whole amount then due upon the execution levied: Provided.^ the value 
of the property in dispute exceeds the amount of said execution. And 
upon the value of the property claimed when the same is less than the 
amount of the execution levied. Any law, usage or custom, to the con- 
trary notwithstanding. 

Ax Act to amend the several acts regulating Attachments in this State, 
and to regulate proceedings in certain cases, when the Plaintiff shall die 
after rendition of Judgment. — Approved Dec. 29, 1836. 

416. Sec. VI. In all cases where any claim shall be interposed for prop- jj^^ p^rty to 
erty levied on by virtue of a fieri facias from any of the courts of this be made if 
State, and pending such claim the plaintiff shall die, it shall and may be Plaintiff die 
lawful for the executor or executors, administrator or administrators, <^fen"y°(f c]aim 
such deceased plaintiff, upon motion, in the court where such claim is Letters must* 
pending, to be made parties instanter ; and the said case shall proceed be produced, 
without further delay : Provided., the said executors or administrators, jj^j^g^ gj^^ 
shall produce in court their letters testamentary or of administration : Notice. 
And provided., they shall give to the claimant, or his attorney, twenty 

days' notice of the said intended application to make such parties. And 
provided always., in such cases, where there are more than one plaintiff, 
the cause shall proceed in the name of the survivor. And this act shall 
not be applicable, except when the last surviving plaintiff shall die while 
such claim is pending. 

Sec. VII. All laws and parts of laws militating against this act, are 
hereby repealed. 

10 



146 JUDICIARY.— CLAIM. 

An Act to amend the Claim Laws now in force in this State. — Approved 
Bee. 21, 1839. 

Agent or At- 417. Sec. I. Be it enacted., That upon the levy of any execution here- 
torney may after to be made, upon any property, whether real or personal, it shall be 
lawful for any person or persons desiring to claim the same, to do so by 
him, her or themselves ; his, her or their agent or attorney ; in the same 
manner and under the same restrictions as are provided for the issuing 
of Attachment. 

Sec. XL All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

Forthcoming An" Act to be entitled an act to Alter and Amend the Claim Laws of this 

Bond under ^\,^\,q.— Approved Bee. 11, 1841. 
Claim, ^^ 

418. Be it enacted., That in all cases of claim, whether the levy be made 
under attachment or execution, the amount of any bond given for the 
forth-coming of the property levied on, shall be in double the value of such 
property, to be estimated by the levying-officer. And all such bonds shall 
be made payable to the plaintiff in attachment or execution, who may sue 
and recover on the same, upon breach of the condition thereof. 

Forthcoming Bond under Claim. 

8TATE OF GEORGIA, ) We, Eichavd Roe as principal, and Samuel 
Houston Couniy. j Wehh as security, both of the State and County 
aforesaid, hereby acknowledge ourselves held and bound to John Boe 
Plaintiff-in-Bxecution, in the sum of two thousand dollars, subject to 
the following condition — 

The condition of the above obligation is as follows — whereas, Madi- 
son Marshall^ Sheriff of said County, has levied a fieri facias^ (issued 
from the Superior Court of said County, in favor of John Doe against 
Richard Roe,) on a certain Negro Fellow named Jacob, as the property of 
said Richard Roe. And whereas Charles Smith hath claimed said Ne- 
gro Fellow as his property: now should said Richard Roe, well and 
truly deliver said Negro Fellow to said Sheriff., at the day and time of 
sale, provided said Negro Fellow should be found subject to said fieri 
facias, then the above obligation to be void ; otherwise of force. This 
May 1, 1859. 

Attest — KiCHARD KoE, p)ri'ncipal. [L. S.] 

James MacJc^ J. P. Samuel Webb, security. [L. S.] 

Isstie in Claim Case. 

April Term, 1859. And now at this Term, comes the Plaintiff-in- 
Execution, by his Attorney John M. Giles, and says, that the Negro 
Fellow Jacob, who has been levied upon as the property of Richard Roe, 
and claimed by Charles Smith as his propert}^, is the property of said 
Richard Roe, Defendant-in-Execution ; and that said Negro Fellow 
Jacob, is subject to satisfy the Execution levied on him, in favor of 
Plaintiff, and this he prays may be inquired of by the country, &c. 

John M. Giles, PVff's Att'y. 



JUDICIARY.— CLAIM. 147 

And the Claimant doth the like, and saith, that said Negro Fellow 
Jacobs is not subject to said Execution, &c. 

James A. Pringle, CVm^ts AtHy, 

Oath of the Jury. 

"You do solemnly swear, that you will give such damages, not less 
than ten per cent, as may seem reasonable and just, to the Plaintiff 
against the Claimant, in case it shall be sufficiently shown that said 
Claim was made for delay only — so help you God." 

Verdict of the Jury, 

We, the Jury, find the property in dispute subject to the Execution. 
And we farther find fifteen per cent. Damages, upon the wJiole amount 
of the execution, against the Claimant, for a frivolous Claim, and the 
Costs of suit. 

Marcus Kunze, Foreman. 

Judgment of the Court- 

Whereupon, it is considered and adjudged by the Court here, that 
said Negro-Fellow Jacob, the property levied on, is subject to the fieri 
facias levied on /wm, and that the /S'Aer?^' proceed to collect the amount 
of said fieri facias by sale of the condemned property. Judgment 
signed, this October 26, 1859. 

John M. Giles, PVff's Att'y. 

Judgment for Damages and Costs. 

Whereupon, it is considered and adjudged by the Court here, that 
the Plaintiff-in-Execution do recover against the claimant Charles 
Smith, and his Security William Jones, the sum of one hundred dollars 
for his damages, and the sum oi fifteen dollars for his costs, in this be- 
half expended. And the Claimant and his Security, in mercy, etc. 
Judgment signed, this October 26, 1859. 

John M. Giles, PVjfs Att'y. 



148 JUDICIARY.— NEW TRIAL. 



NEW TRIAL. 

New trial may 420. Sec. LV. The said superior courts shall have power to correct errors 
be granted, and grant new trials, in any cause depending in any of the said superior courts, 
in such manner and under such rules and regulations as they may establish, 
and according to law, and the usages and customs of courts. 

How. 421. Sec. LVII. In any case which has arisen since the signing of the 

present constitution, or which may hereafter arise, of a verdict of a special 

jury being given contrary to evidence and the principles of justice and equity, 

it shall and may be lawful for the judge presiding to grant a new trial, before 

Notice must another special-jury, in the manner prescribed by this act: Provided^ that 

^be given, twenty days' notice be given by the party applying for such new trial, to the 

.Judo-e must adverse party, of his intention, and the grounds of his application. And the 

ent'er his said judge shall, in all cases of application for new trials, or correction of 

opinion. errors, enter his opinion on the minutes of the court, for his determination on 

each respective case. 

Before a Spe- ^'^^^ ^^^- LVIII. All new trials shall be had by a special-jury, to be 
cialJury. taken from the grand-jury list of the county. 

New Trials ^'^^' -^^ "®^ trials shall be had by a special-jury to be taken from the 
how tried, grand-jury list of the county, and struck in the pj-esence of the court, in the 
Jurv how following manner. The clerk shall produce a list of the original pannel of 
formed. grand-jurors, returned to the term in which such trial shall be had, from which 
the parties or their attorneys shall alternately strike out one until only twelve 
shall remain, who shall forthwith be impannelled and sworn to try the cause. 
Who entitled -^"^ ^" ^^^ cases the party applying for such new trial, shall strike first. And 
to first strike, in case of refusal in either to strike on the calling of the cause, the judge pre- 
siding shall order some officer of the court, or other person, to proceed to 
strike the said jury, in the same manner as the party refusing might or could 
From whom ^^^® done. And it shall be the duty of all persons summoned on the grand- 
Jury formed, jury, to attend the courts for the purpose of determining such new trials, 
whether they be sworn on the grand-jury or not. 

Note. — The Practice is, to apply for a Eule Nisi, at the Term at which the Verdict has 
been rendered. If the Eule be granted, (which is generally made returnable at the suc- 
ceeding Term,) it is entered, by the Clerk, on the Motion Docket, and a copy is served 
on the opposite Counsel ; or, what is more usual, the Counsel acknowledges service and 
waives copy, on the back of the Eule. If it be desired that the Eule should act as a 
supersedeas, it must be so expressed, in the body of the Eule. 

An Act to regulate the granting of New Trials. — Approved February 20, 
1854. 

Superior 424. Sec. I. Be it enacted^ That from and after the passage of this act. 

Courts must it shall be obligatory upon the superior courts of this State, to grant new trials 

grant New j^ ^11 cases where an exception to any portion of the pleadings may be ille- 

what cases S^^^^ sustained, or illegally overruled by the presiding judge, against the 

applicant for a new trial; in all cases where any evidence may be illegally 



JUDICIARY.— EXECUTION, CONTROL, ETC. 149 

submitted to, or illegally withheld, from the jury, against the demand of such 
applicant; in all cases where the presiding judge may deliver an erroneous 
charge to the jury, against such applicant, or refuse to give a legal charge in 
the language requested, when the charge so requested is submitted in writing; 
and in all cases where any evidence, not merely cumulative in its character, 
but relating to new and material facts, shall be discovered by the applicant 
after the rendition of a verdict against him, and shall be brought to the notice 
of the court within the time now allowed by law for entertaining a motion for 
a new trial. 

425. Sec. II. That it shall be obligatory upon the supreme court of this (^ourt^must 

State, to reverse the judgment below and award a new trial in every case, order New 

where it shall appear that an error has been committed in any of the points Trial. 

enumerated in the first section of this act, by the judge presiding at the trial 

of the cause. -r , . 

Judge to grant 

426. Sec. III. That the judges of the superior courts may have the power New Trial on 
to exercise a sound discretion in granting new trials in cases where the verdict discretion, in 
may be decidedly and strongly against the weight of evidence, although there 

may appear some slight evidence in favor of the finding. And the supreme 
court shall have power to revise and control such discretionary power in the 
superior courts. A portion of 

42Y. Sec. LXI. The act entitled "an act to revise and amend the judiciary 
system of this State," passed at Louisville, on 9th February, 1797, from the 
first to the 67th clause inclusive, be and the same is hereby repealed. 

No justice of the peace shall sustain or try any satisfaction in damages, for ^^ Trespass 
any trespass on the person or property of such plaintiff. Courts 



EXECUTION, CONTROL, ETC. 

428. Sec. XXXII. In all cases where execution shall issue illegally, and^,, ,-p, 
the person against whom such execution may be, shall make oath thereof, tion. 
and shall state the causes of such illegality, such sheriff shall return the same 

to the next term of the court out of which the same issued, which court shall 
determine thereon, at such term. 

429. Sec. XXXIII. No sales in future shall be made by sheriffs, of prop- Sheriffs' sales 
erty taken under execution, but on the first Tuesday in each month, and be-^V*^^^ ■^^^J'^' 
tween the hours of ten and three in the day, [see sheriff.] And it shall be 1^^^°^^^^^^^^^^ 
the duty of the sheriffs to give thirty days' notice in one of the public gazettes 

of the State, of all sales of lands and other property executed by him. And 
also, advertise the same in three of the most public places in the county where 
such sales are to be made. And shall give a full and complete description of 
the property to be sold ; making known the name of the defendant, and the 
person who may be in possession of the property, except horses, hogs and 
cattle, which may be sold at any time by the consent of the defendant; and 
in which case it shall be his duty to give to the plaintiff ten days' notice there- 
of; and also, to advertise the same in three or more of the most public places 
in the county where such property may be, at least ten days before the sale. 



150 JUDICIARY.— EXECUTION, CONTROL, ETC. 



ILLEGALITY OF EXECUTIONS. 

Affidavit of Illegality. 
GEORGIA— 7/0 USTON COUNTY. 
"^^^^^^ I Fi'fa' from the Superior Court, returnable to Octo- 
KICHAKDROE. ) ^er Term, 1858. $500 principal debt, etc. 

Before the undersigned, personally appeared Richard Roe. Defend- 
ant in the above-stated ^i. /a., who being sworn according to law, saith, 
that the above-mentioned fi. fa. is proceeding against him illegally, 
for the following reasons, to wit — 

First, because, etc. [Stating the grounds^] 
Secondly, because, etc. [Stating the grounds^ 

Sworn to and subscribed, ") -r» t^ 

before me, this May 1, 1859. L ElCHARD ROE. 

James Mack^ J. P. J 



Issue formed on the above Affidavit. 

And now at this Term, comes the Plaintiff in Execution, by his 
Attorney, James A. Pringle, and says, that, [traversing the first ground 
of illegality ;] that, [traversing the second ground of illegality^ etc.] but 
that said fi. fa. is open for the full amount thereof And this the 
Plaintiff prays may be inquired of by the country, etc. 

James A. Pringle, Atfy pro PVffinfi.fa. 

Joining Issue. 

And the Defendant in Execution, by John M. Giles, his Attorney, 
doth the like, etc. 

John M. Giles, Att^y pro Deft in fi. fa. 

Verdict of the Jury. 
We, the Jury, find the Issue in favor of the Plaintiff in Execution. 

James Long-, Foreman. 

Judgment of the Court. 

JOHN DOE ) 

vs. \Fi. fa. and Issue joined on Illegalitv. 

RICHARD ROE. ) o J 

The above Issue having been submitted and tried, at the present 
Term ; and the Jury having returned their Yerdict, upon said Issue, 
in favor of the Plaintiff in Execution, it is therefore, on motion, order- 
ed and adjudged by the Court, that the Illegality filed in said case, be 
overruled and dismissed. And it is further ordered, that said fi. fa. 
proceed. And it is further ordered, that the Plaintiff in fi. fa. do re- 
cover from the Defendant, ten dollars for his costs and charges, in this 
behalf sustained. Judgment signed this May 10, 1859. 

James A. Pringle, Atfy pro PVffinfi.fa. 

An Act to amend the thirty-second section of the Judiciary System of this 
State, passed the 16th day of February, 1799, so far as relates to Illegality 
in Executions. — Approved Dec. 28, 1838. 



JUDICIARY.— EXECUTION, CONTROL, ETC. 151 

430. Sec. I. JSe it enacted, That frofti and immediately after the passage Illegality how 
of this act, when any person against whom an execution shall issue illegally, returned, 
shall make oath thereof, and shall state the cause of such illegality, the sheriff 

shall return the same to the next term of the court from which such execution 

issued : Provided^ that the person alleging such illegality, shall also deliver Forthcoming 

to the sheriff or other lawful officer, a bond with good and sufficient security, ^o'";^ *® ^^ 

conditioned for the delivery of the property levied on, at the time and place ^ 

of sale, in the event of the causes or grounds of the alleged illegality being 

overruled by the court, and not otherwise. And in all cases it shall be the Levy must he 

duty of the sheriff or other officer, to levy on property, where any can be made. 

found, before receiving such affidavit. — \^8ee 431.] 

Sec. II. All laws or parts of laws repugnant to this act, be and the same 
are hereby repealed. 

Forthcoming Bond. 

STATE OF GEOKGIA, | We, Richard Roe as principal, and Charles Smith 
Houston County. j" ^g security, acknowledge ourselves held and bound 
to Madison Marshall^ Sheriff of said County, in the sum of two thousand 
dollars^ subject to the following condition — 

The condition of the above obligation is such — that whereas, said 
Sheriff hsiS levied Sifi.fa. issued from the Superior Court of said Coun- 
ty, in favor of Joh7i Doe against Richard Roe^ for the sum of one thou- 
sand dollars^ principal debt, besides interest and costs, upon a certain 
Negro Fellow named Jacob, of yellow complexion, about twenty-five 
years of age. And whereas, said Richard Roe has filed an Affidavit 
of Illegality against said fi.fa. returnable to the next ensuing term of 
the- Court from which said^^.y^. issued : now, should said Richard Roe, 
well and truly deliver said Negro Fellow Jacob to said Sheriff, at the 
time and place of sale, in the event of the causes or grounds of the 
alleged Illegality being overruled by the Court, then the above obli- 
gation to be void ; otherwise of force. This May 1, 1859. 

Approved, — Eichard Roe, prinH. [L. S.] 

James Mach, J. P. Charles Smith, secHy. [L. S.] 

An Act in relation to Affidavits of Illegality. — Approved Dec. 27, 1845. 

431. Sec. I. De it enacted. That when any affidavit of illegality shall be 

filed in terms of the law, for the purpose of staying proceedings when an exe- Pending Ille- 
cution is levied on property, the property so levied on, shall be subject to levy gfility other 
and sale under other executions. And the officer making the first levy, shall-jg^^jg^Qj^g^jj^^ 
claim, receive, hold and retain such an amount of the proceeds of sale as the property. 
court shall deem sufficient to pay the execution first levied, including interest 
up to the time of the court, at which said illegality shall be determined. And 
any bond given by the defendant on filing such affidavit, shall be released and Bond dis- 
discharged, so far as relates to the property sold. charged. 

An Act in relation to Affidavits of Illegality of Executions. — Approved Feb. 
22, 1850. 

432. Sec. I. Be it enacted, That from and after the passage of this act, it 

shall and may be lawful for the defendant or defendants in execution, in cases xVffidavits 
of illegality of execution, by leave of the court, to make any amendment of of Illegality 
the affidavit of illegality which the defendant or defendants may deem neces- amendable, 
sary, and which amendment may be made, either by the insertion (;f new 
grounds of illegality, or the correction of errors and mistakes in the affidavit of 



m 




152 JUmOIARY.— EXECUTION, CONTROL, ETC. 

illegality. And the said amendments when made and sworn to, shall be taken 
as part of the original affidavit : Provided always, that the amending party 
shall not be entitled to any delay orcontinuance of said case to which he would 
not have been entitled in case his affidavit had been perfect in the first instance. 

433. Sec. II. Whenever an amendment is made under the provisions of 
Continuance ^^^ ^^^' ^^^ plaintiff in execution or his counsel, if surprised by the amend- 

allowed. ment, shall and may move a continuance of the case, and the court shall charge 
the continuance to the amending party. 

An Act to amend the thirty -first section of the Judiciary act of 1799. — ^^- 
proved Dec. 14:, ISll. 

434. Sec. I. All executions shall be issued and signed by the clerks of the 
Ft. fa. how several courts, in which judgmentsshall be obtained, and bear teste in the name 

issued and of One of the judges, or presiding justices of such courts, and shall bear date 
levied. ffom the time of issuing; shall be directed " to all and singular the sheriffs of 
this State," and may be levied on the estate, both real and personal, of the de- 
fendant or defendants; or issue against the body of the defendant, at the op- 
tion of the plaintiff. Which execution shall be of full force until satisfied, with- 
Not required out being obliged to be renewed on the court-roll, from year to year, as here- 
to be renew'd. tofore practised. And when the defendant shall point out any property on 
Property in which to levy the execution, being in the hands and possession of any person 
Defendant s ^^^^ ,^ party to such judgment, the sheriff shall not levy thereon, but shall pro- 
be first sold. ^*^®^ ^^ ^^^y ^" ^^(^^ property as may be found in the hands and possession of 
the defendant ; who shall nevertheless, be at liberty to point out what part of 
Defendant his property he may think proper, which the sheriff shall be bound to take and 
may point outsell first, if the same is in the opinion of the sheriff, sufficient to satisfy such 
property, judgment. 

435. Sec. II. Where any execution shall have issued, or may hereafter 
Ca. sa. not issue, against the body of any defendant, and the same shall not have been satis- 

satisfied,^./a. f^Q^ [^ shall be lawful for an execution to issue against the propertv of such 

^ ' defendant or defendants on the return of said execution, which had been issued 

against the body of the said defendant or defendants. And that when an exe- 

Defendant cution against the body of any defendant shall have been served, the party on 

may be re- whom the same shall have been served shall be released : JProvided, he, she 

leased by de- or they, shall deliver to the officer serving the same, the property which 

sufficiency ^of ®^^^^ ^" ^^® opinion of such officer, be sufficient to discharge the debt and all 

property to costs, and give sufficient security to the said officer, that the property so de- 

the Officer, livered is bond fide the property of the defendant or defendants, and subject to 

the discharge of the said debt, in which case, the officer shall return the execu- 

Ca. sa. to be ^'^^^ ^^ issued against the body of the defendant or defendants, and take out 

returned and an execution against the property of such defendant or defendants, and pro- 

fi.fa. to issue, ceed to advertise and sell the property so delivered up to satisfy such execution 

*^^ P^^j^Perty as heretofore practised. 

Writ of Fieri Facias. 

STATE OF GEORGIA, i To all and singular, the Sheriffs of this — 
Houston County. J State Greeting. 

We command you, that of the goods and chattels, lands and tene- 
ments of John Doe^ you cause to be made the sum of one thousand 
dollars, for principal Debt ; the sum o^ fifty dollars, for Interest to this 
date, and the sum of twenty dollars cost. Which lately, to v^^it, on the 
twentieth dsLj of April, eighteen hundred Siud fifty-nine, Richard Roe, in 
our Superior Court, held in and for said County, recovered against said 



JUDICIARY.— EXECUTION, CONTROL, ETC. 153 

John Doe^ whereof the said John Doe is convicted and liable, as appears 
to us of record. 

And have the said moneys before our said Superior Court, to be held 
on the fourth Monday in Octoher next, to render to the said Richard 
Roe, his damages, costs and charges aforesaid. And have you, then 
and there, this Writ. 

Witness, the honoraUe Henry G, Lamar, Judge of said Court, this May 
1, 1859. William H. Miller. Clerh. 

Bond under the foregoing Statute. 

STATE OF GEORGIA, ^ ^e, John Doe as principal, and Richard Doe 
Houston County. J as security, acknowledge oursclves held and bound 
unto John L. Halstead, sheriff of said County, in the sum of one 
thousand dollars, subject to the following condition — 

The condition of the above obligation is as folio ws-"-whereas, said 
John Doe has been arrested by said Sheriff by virtue of a Writ of Ca- 
pias ad Satisfaciendum, issued from the Superior Court of said County, 
in favor of Charles Smith, for the sum of five hundred dollars. And 
whereas, said John Doe has delivered to said Sheriff, a certain Negro 
hoy named Julius, as his property. Now, should said Negro hoy, prove 
to be hond fide the propert}^ of said John Doe, and subject to the dis- 
charge of the- said deb , then this obligation to be void ; otherwise of 
force. This May 1, 1859. 

Attest — John Doe, prinH. [L. S.] 

James Mack, J. P. Eichard Koe secuHy. [L. S.] 

An Act to niake Bank and other Stock, subject to Execution. — Approved 
Dec. 21, 1822. 

436. From and after the passing of this act, the shares or stock owned by Bank Stock 
any person in any of the banks, or other corporations, in this State, shall be subject to 
subject to be sold by the sheriff, or his deputy, under execution. Execution. 

437. Sec. II. When any sheriff, or his deputy, shall have placed in his How levied on 
hands, any execution against any person who owns any stock or shares in any ^^^ sold, 
of the banks or corporations, of this State, it shall be lawful, and he is hereby 
required, on application of the plaintiff, his agent or attorney, to endorse on 

said execution, a levy of the number of shares belonging to the defendant, and 
after advertising the same, agreeably to the law regulating sheriffs' sales, shall 
thereafter proceed to sell the said shares or stocks : Provided always, that 
he shall set up one share at a time, and shall sell no more than is sufficient to 
satisfy the amoimt of executions then in his hands. 

438. Sec. III. When any constable shall have any execution placed in Constable's 
his hands against any person who is the owmer of any shares or stock in ^}^^J ^^^^^-l 
any bank, or other corporation, in this State, it shall be lawful, and he is ^°^stock^° 
hereby required, on the application of the plaintiff, his agent or attorney, 

to endorse a levy on said execution or executions, in like manner. And it 
shall be his duty to make return of the same to the sheriff of the county 
in which he lives, which said sheriff shall proceed to sell, as pointed out by 
the second section of this bill. 

439. Sec. IV. When the sheriff, or his deputy, shall sell any shares in Certificate to 
any bank, or other corporation, in this State, he shall give a certificate of ^J ^iTf °-S^ 
such sale to the purchaser. *^® ^^^"^" 

440. Sec. V. The officer of the bank, or other corporation, whose duty 



154 



JUDICIARY.— EXECUTION, CONTROL, ETC. 



Bcank-ofiScer's it may be to make transfers of stock, on the books of the bank, or other 
duty as to corporation, shall and he is hereby required, to make a transfer of the 
stock purchased under this act, to the purchaser of the same, upon his, her 
or their producing [the] certificate or certificates of the said officer. 

441. Sec. VI. Any Transfer made by the defendant of his bank, or 
other stock, after judgment obtained against him or her, shall be void : 
Provided^ that notice of the obtainment of such judgment be served on 
the cashier of such principal bank, or any of its branches, or the proper of- 
ficer of such other corporation, within twenty days after said judgment is 
obtained. 



transfer. 



Transfer by 
Defendant 
after Judg- 
ment void. 



Security pay 

ing off ji-fa- 
to have con- 
trol of it 
against Co- 
security. 



An Act for the Relief of Securities. — Approved December 22, 1840. 

Whereas^ great inconvenience arises, and often great injustice \is\ done 
to individuals, being parties in execution, under the existing law, as Co- 
securities — for the fact, that whereas, one Security, as the case may be, 
having been compelled, under Execution, to pay the debt or obligation of 
his principal, is not allowed to control or collect, by said Execution, each 
Security's proportionable part of said Execution, so paid ; but must pro- 
ceed by an action at law ; for remedy whereof — 

442. Sec. I. JBe it enacted^ That from and immediately after the pas- 
sage of this act, any security, who may be sued, together with other securi- 
ties, shall pay or discharge any execution or executions issued against prin- 
cipal or co-securities, shall after an entry is made on the said executions by 
the collecting officer, that the same has been well and truly paid by said 
security, then and in such cases, the said security so paying or discharging 
said execution [shall have the control thereof] against each co-security who 
may have been made a party to said suit, for the proportionable part, equi- 
tably due by each, and no more ; [see 446 :] Provided nevertheless^ that 
all should be equally responsible, if not, then to be equally divided or paid 
by those who are. 

443. Sec. II. Any execution so paid or satisfied by two or more secu- 
rities, shall be held as the joint property of said securities against all the 
parties equally concerned for their proportionable part. 

444. Sec. III. After payment and entry made, as herein prescribed, it 
shall be the duty of the officer making the entry to deliver said execution 
to the security who shall have made the payment, to be used and controlled 
as herein mentioned. 

Sec. TV. All laws and parts of laws militating against this law, be and 
the same are hereby repealed. 

An Act to exj)lain and amend the first section of an act approved twen- 
tieth December, eighteen hundred and twenty-six, entitled " an act to 
define the liability of Securities on Appeal ; on Stay of Executions, and 
for the protection of Bail on Recognizance, Bond, Note, or other Con- 
tract." And also, to explain and amend the first section of an act ap- 
proved December twenty-sixth, eighteen hundred and thirty-one, en- 
titled " an act to alter and amend an act, entitled an act to define the 
liability of Securities on Appeal ; on Stay of Executions, and for the 
protection of Bail on Recognizance, Bond, Note, or other Contract." — 
Approved December 27, 1845. 
Security pay- 445. De it enacted, That from and immediately after the passage of this 
ing of^ ft. fa. act, it shall and may be lawful for any person or persons who have hereto- 
tore become security on any note, bond or other instrument m writing, 
and not interested in the consideration, and judgment has been rendered 
against them, and such security or securities have been heretofore compel- 



Two Securi- 
ties to hold 
jointly. 

Fi. fa. to be 

delivered to 
Security. 



to have con 
trol of it 



JUDICIARY.— EXECUTION, CONTROL, ETC. 155 

led to pay oif such judgment, or may hereafter be compelled to pay off 
such judgment, he, she or they shall be entitled to the control of the same, 
and be permitted to use and control the same, in as full and ample a man- 
ner as the party plaintiff could have done against the principal debtor or 
debtors : Provided alvmys^ that it shall be made satisfactorily to appear to Provided he 
the court where such judgment was rendered, that such person or persons, shows that he 
assuming to have the control of any judgment as aforesaid, were bond fide ^^curity^^" 
security or securities only, upon the original bond, note or other instru- 
ment, which was the foundation of the judgment : Provided further^ thsit Bona jide pur- 
this act shall not affect the rights of any bond fide purchaser, without actual chaser pro- 
notice of such securityship and judgment, acquired before the passage of ec ed. 
the same. 

All laws and parts of laws militating against this act, be and the same 
are hereby repealed. 

An Act to alter, amend and explain the first section of an act passed for 
the Relief of Co-Securities, assented to 22d December, 1840. And to 
authorize Constables to levy certain Executions. — Approved Feb. 8, 
1850. 

Whereas^ great doubt exists whether a Co-Security who has been sued 
with other securities as such, as also, co-securities who have omitted to 
sign, the original note or contract as security, and also neglected to make 
special defence at the trial of the same, showing him or themselves security 
on the original contract ; and against whom executions have issued ; and 
who have been compelled to pay off the same, can have control of the 
same for the purpose of reimbursing him or themselves out of the property 
of the co-securities : — \^8ee 451.] 

446. Sec. I. For remedy whereof^ be it enacted^ That from and imme- Security to 
diately after the passage of this act, any security who may have been, or ^f T^^/a<^a[nst 
who may hereafter be sued as such, with other co-securities, and against Co-security. 
whom execution may have been, or may be issued, and who may have 

been, or may hereafter be compelled to pay off the same, shall after an en- 
try made by the collecting officer, that the same has been well and truly 
paid by such security, have control of the execution or executions for the 
purpose of reimbursing him or themselves proportionably, out of the prop- 
erty of the co-security or securities. 

447. Sec. II. Any security who may have been, or may be sued toge- Security neg- 
ther with other securities, and who have omitted or may omit to sign the lecting to 
original note or other contract, as security ; and who when sued, have neg-'^^^^ Special 
lected or may neglect to make special defence at the trial, showing him- gj^Q^ ^j^^^. fa^^ 
self or themselves security on the original contract; and against whom and have con- 
execution has issued or may issue ; and who have been or may be compel- trol of fi. fa. 
led to pay off the same, shall upon showing to the court from whence said 
execution or executions issued, that he or they were bo7id fide security or 
securities on the original contract, and not interested in the original con- 
sideration, have an entry by the court, that he or they are security or se- 
curities, on the execution or executions, and after which and upon having 

an entry made by the collecting officer, on the execution or executions, 
that the same has been well and truly paid by said security or securities, 
then and in such cases, said security or securities so paying off and dis- Security pay- 
charging said execution or executions, shall have control of the same for i"g off fi. fa. 
the purpose of collecting by levy and sale, from each co-security so sued V^.q] If sT' 
together, or such as may be responsible, the proportionable share due by collect »rora^a 
each, upon such execution or executions : Provided nevertheless, that if any from respon- 
should not be responsible, then the amount so paid on said execution or sible Co-secu- 



156 JUDICIARY.— EXECUTION, CONTROL, ETC. 

executions by such security, is to be equally divided between those secu- 
rities who are. 
Constable 448, Sec. III. That in all cases where any sheriff may be a defendant 
may levy Ex e- J j^ execution, it shall be lawful for the plaintiff to place his execution in the 
Sheriff. hands of any constable of the county, who shall be and he is hereby author- 
ized to levy and sell, as the coroner or sheriff of an adjoining county is 
authorized to do in such cases. 

Sec. IV. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

Entry by Collecting- Officer. 

Eeceived, May 1, 1859, the whole amount of this Execution, prin- 
cipal, interest and cost, amounting to five hundred dollars of John Doe^ 
one of the Securities ; and the control given to him, according to law. 

Madison Marshall, Sheriff. 

Order of the Court. 

JOHN DOE \ ^2,'. Fa. from Houston Superior Court, returnable 
vs. I to Odoher Term, 1858. 

RICHARD ROE, f pHncipal debt, $500 00. 
CHARLES SMITH r Interest, $50 00. 

and \ Costs, $17 00. 

JAMES WILLIS. J It appearing to the Court here, that Charles 
Smith and James Willis^ were hona fide securities on the Note^ the 
foundation of the Plaintiff's demand, and in no way interested in the 
consideration thereof And it appearing that said Charles Smith has 
been compelled to pay off said ^i. /a. It is ordered, that said Charles 
Smith have the control of said j^. /a. for the purpose of collecting by 
levy and sale, from said James Willis^ the proportionable share due by 
said James Wi7/z5 on said^./a. This October 26^ 1859. 

James A. Pringle, 

Att^y jpro Charles Smith, 

An Act to amend an act entitled "an act to alter and amend an act entitled 

an act to define the liability of Securities on Appeals, &c. — Approved Dec. 

^Wi, lSSi:'—A2Jproved Mb. 2Sd, 1850. 

Separate 449. Sec. I. JBe it enacted, That whenever any person has or shall be- 

action against QQi^^g surety on any note, bond or other contract, and fails to sign his name 

'^'^^e-et con-^^ such, and separate actions are brought against such surety and his principal, 

troL ^^^ the surety shall or may pay off the judgment . rendered against himself, 

and shall make it appear to the court in which the judgment was obtained, 

that he was only a surety on such bond, note, &c., and not interested in the 

consideration thereof; that then and in that event, he shall be entitled to the 

control of the judgment against his principal, for the purpose of remunerating 

himself out of his property. 

Surety must 450^ g^^^^ jj When anv surety shall or may sign his name as such, to 

as such ^^y b^^"d> ^c)te or other contract, and separate suits are brought agauist him 

and his principal, that he shall be sued as surety, and as such, mesne and final 

process shall go against him ; and on his paying off the judgment obtained 

against himself, he shall have control of the execution against his principal for 

his reimbursement. 

451. Sec. III. Where there are two or more sureties to any note, bond 



JUDICIARY.— EXECUTION, CONTROL, ETC. 157 

or other written contract, and such sureties are or may be sued in separate Sureties sued 
actions, the surety paying off the debts shall have the control of the executions separately, 
obtained against his co-securities, for the purpose of collecting out of them ^ontrol of^. 
their j9ro raifa part of the debt. And if such surety should fail to sign his ^ne paying off 
name as such, then on his making it appear to the court in which such suit the debt, 
was brought, that he was only a surety, and not interested in the considera- 
tion of the debt, he shall have the control of the executions issued against his 
co-securities, to the same extent and for the same purpose as is provided in 
the foregoing part of this section. 

452. Sec. IV. If separate suits are, or hereafter may, be brought in any Endorser to 
of the courts of this State, against the maker and endorsers of any promissory liaye control 
note, and the debt is or may be collected of one of said endorsers, in that^^''^^"^^*^. ^^ 
event such endorser, for his reimbursement, shall have the control of the exe- Endorsers, 
cution issued against the maker of the note, as well also as of the execution 
obtained against any of the prior endorsers. 

Sec. V. All laws and parts of laws militating against this act, be and the 
same are hereby repealed. 

Surety against Principal. 

JOHN DOE \ Fi, Fa. from Houston Superior Court, returnable 
^«- I to October Term, 1859. 

RICHAED ROE. f Principal debt, $500 00. 
JOHN DOE / Interest, $500 00. 
vs. \ Costs, $15 00. 

CHARLES SMITH. 7 It appearing to the Court here, that Charles Smith 
was security on the iVofe, the foundation of the above fi. fas.^ and in 
no way interested in the consideration of said Note. That separate 
actions were brought on said Note against said Richard Roe^ and said 
Charles Smith. That the ^i. /a. against said Charles Smith has been 
paid off and discharged by said Charles Smith. It is therefore hereby 
ordered, that said Charles Smith have the control of the judgment 
rendered against said Richard Roe ^ and the execution issued therefrom, 
in said cause for the purpose of remunerating himself out of his property. 

James A. Pringle, 

Attorney pro Charles Smith. 

Surety against Co- Security. 

It appearing to the Court here, that Richard Roe and CJiarles Smith 
were Co-Securities on the i\^ofe, the foundation of the Plaintiff's de- 
mand, and in no way interested in the consideration of said Note. 
That separate actions were brought against said Co-Securities. That 
Richard Roe^ one of said Co-Securities, has paid off the said debt. It 
is therefore, hereby ordered, that said Richard Roe have the control of 
the Execution obtained in said cause, against said Charles Smithy for . 
the purpose of collecting out of him his pro rata part of said debt. 

An Act to give Endorsers the control of yj. fas. in all cases in which they 
may have paid them, against the principal or any prior Endorser. — Ap- 
proved 3farch 1, 1856. 
4.53. Sec. I. Be it enacted.^ dbc, That hereafter in all cases in which the Endorsers 

principal or endorser or endorsers, may be sued in the same action, or in how reim- 
bursed. 



158 JUDICIARY.— EXECUTION, CONTROL, ETC. 

which they may be sued in separate actions, and in which judgment may be 

obtained ; and where any one of said endorsers may or shall pay ofFthe^./a./ 

in any such case, the endorser so paying of^ the Ji. fa. shall have the control of 

Xheji.fa. orji.fas. in any or either of the cases above-stated, for the purpose of 

remunerating himself out of the property of the principal or either of the prior 

Endorser out 6"<^<^^'sers. And where any subsequent endorser has collected the money out 

ofprinclpalor of ^.ny prior endorser, the prior endorser shall have the control of ihefi.fa. 

prior En- in any of the cases above enumerated, to reimburse himself out of the princi- 

dorser. pal, or any prior endorser to him. 

Sec. II. [Repeals conflicting laws.] 

An Act to authorize the issuing of Alias Executions, in vacation, by the several 
Courts of Law within this State, when the originals have been lost. — Ap- 
proved Dec. 22, 1857. 
Judge may 454. Sec. I. De it enacted^ That from and after the passage of this act, 
order Alias whenever any execution, which shall have been regularly issued, out of any of 
Executions to ^\^q courts of this State, shall be lost, it shall and may be lawful for the judges 
issue in vaca- ^^ ^^^ ^^ ^^j^ courts, at any time in vacation, upon proper application being 
made, to grant orders for the issuing of alias executions, in all cases in which 
they may be required ; upon the same terms and with the same restrictions, 
as are now prescribed for the issuing of the same in term-time. 
Extended to 455. Sec, II. That the provisions of this act, shall also extend to the 
City-Courts, different city-courts of this State. 

Sec. III. [Repeals conflicting laws.] 

An Act for the relief of Sureties, Endorsers and Guarantors, in certain cases 
therein mentioned. — Approved Dec. 21, 185t. 
Payment by 456. Sec. I. Be it enacted^ That when any surety, endorser or guaran- 
Surety, etc., tor, in any action against the principal or principals, and such surety, endorser 
pending suit, or guarantor, shall pay the amount due to the plaintiff", pending such action, 
^"^^ *^ PfJ^' such payment shall not operate as, or be plead by the principal or principals, 
^benefit of^ '^"^ ^^^ ^^ '^^^^ action, but the said action may be continued in court, notwith- 
Surety. standing such payment, and be prosecuted to final judgment against the prin- 
cipal or principals, in the name of the plaintiff" for the use of such surety, 
endorser or guarantor. 
Payment by 457. Sec. II. That in all cases of payment by an endorser or guarantor, 
subsequent pending the action, as provided in the foregoing section, where there are prior 
Endorser, endorsers or guarantors, joined as parties defendants, said endorser or guaran- 
^^TtV ^^^ ^2)X\ be entitled to prosecute the action to judgment, and control the same, 

against prior when recorded, against such prior endorsers or guarantors, as well as against 
Endorser, and the principal or principals, as provided in the foregoing section. 

Principal. 45g, Sec. III. That in all cases of payment by a surety, pending an action, 

Surety paying ^|jgj.Q co-securities are ioined as parties defendants, such surety shall be enti- 

tion to\ave tied to prosecute the same to judgment; and control said judgment, when 

control of case recovered \recorded'\ against his said co-sureties, for their proportionable lia- 

against CO- bility, of the debt or contract on which said judgment may be recovered, and 

securities. ^^ ^j^^ ^^g^g ^f ^.j^^ action. 

Surety etc. 459. Sec. IV. That where any surety, endorser or guarantor, shall pay off" 
paying off and discharge any execution against the property of principal and surety, or 
Execution, principal endorser or guarantor, in such case, upon the return of said execution 
returned "no |-Q f^i^Q^^^ ^\\h the return of "no property," Ijy the levying-officer, such person 
sub^i-ogatJd to^° P^J^^^g <^ff tbe same, shall be subrogated to all the rights of the plaintiff", 
all the rights 
of Plaintiff. An Act relative to the issuing of Executions. — Approved Dec. 11, 1858. 

460. Sec. I, Be it enacted^ that in all cases, after obtaining a verdict and 



JUDICIAKY.— ATTOENEY AND SOLICITOR-GENERAL. 159 

entering up judgment, plaintiffs may obtain, from the proper officer, execu- Fi. Fa.maj 
tions on said judgments, upon application for the same. But if the same is issue upon ap- 
obtained before the expiration of the time allowed for appealing from said ^^^y*^^^ g^* 
verdict, the same may be superseded, by the defendant luji.fa. entering his perseded. 
appeal from said verdict, on the usual terms and conditions. 



EXECUTORS AND ADMINISTRATORS. 

461. Sec. XII. No suit or action shall be issued against any executor 12 months al- 
or administrator for any matter or cause against the testator or intestate lowed ^xecu- 
of such executor or administrator, in any of the said courts, until tbe ex- i^[ni^trator' 
piration of twelve months after probate of the will of such testator, or 

letters of administration, granted on the estate of such intestate. 

462. And no suit in any of the said courts, shall abate by the death of Suits not to 
either party, where such cause of action would in any case, survive to the abate, 
executor or administrator, whether such cause of action would survive in 

the same or any other form ; but the same shall proceed as if such testator 
or intestate had not died, under the restrictions and regulations following — 
When a plaintiff shall die, in any case aforesaid, the executor or admin- 
istrator of such plaintiff, shall within three months after taking out probate 
of the will, or letters of administration, give notice to the defendant or 
defendants by jScire Facias to issue out of the clerk's office, returnable in Sdre Facias 
the manner herein-before prescribed for the issuing and return of process, ^^y Issue. 
And in cases where the defendant shall die, it shall and may be lawful for 
the plaintiff to issue a Scire Facias^ in manner aforesaid* immediately after Defend't musfc 
the expiration of twelve months, requiring such executor or administrator appear. 
to appear and answer to the said cause. 

468. And where a /erne sole being plaintiff shall marry pending any suit, Feme soZe mar- 
the same shall not abate by reason of such intermarriage, but the same ^ying> suit not 
being suggested on the record, such cause shall proceed in the name of 
the husband and wife. 

Marriage of Feme Sole Tlaintiff. 

JANE CLIFTON ) 

vs. \ Assumpsit etc., October Term, 1859. 

JOHN DOE. ) 

It appearing to the Court here, that the Plaintiff, Feme Sole at tbe 
commencement of the above Action, has intermarried with Richard 
Eoe, it is therefore, ordered that said Action proceed in the name 
of the husband and wife. 



ATTORNEY AND SOLICITOR-GENERAL. 

464. Sec. XXXVIL It shall be the duty of the States' attorney and Duty of At- 
solicitors, or one of them, to prosecute all delinquents for crimes and other *5!™^5' and So- 
offences, cognizable by the said courts ; and all civil actions in which the ^ gj^| 
State shall be concerned ; and to give advice or opinion in writing, to his 
excellency the governor, in questions of law in which the State may be in- 
terested. And in case it should so happen that neither the States' attorney when absent 
or solicitors, or either of them, can attend the said courts, then the judge Court may ap- 
point pro. tern. 



160 JUDICIARY .—ATTORNEY AND SOLICITOR-GENERAL. 

presiding, may and he is hereby authorized and required, to appoint some 
attorney-at-law, to prepare and prosecute the indictments and other busi- 
ness of the State ; and such person so appointed, shall be entitled to the 
same fees and emoluments therein, as the States' attorney or solicitors 
would have been entitled to. 

An Act pointing out the mode of compelling the Attorney-General and 
the Solicitors-General of this State to pay over Moneys collected by 
them for the State. — Approved Dec. 23, 1826. 
Attorney and 465. From and after the passage of this act, the attorney-general and 
Rol. Gen. may^j^^ solicitors-general of this State, shall be subject to a rule of court to 
compel them to pay over moneys collected by them for the State, under 
the same rules and regulations as govern attorneys and counsellors-at-law, 
when they neglect or refuse to pay over moneys collected for their clients. 
Who may 466. Sec. II. Any practising attorney-at-law, when employed for that 
prosecute purpose by the governor, treasurer or comptroller-general, shall be fully 
^" ®" competent to prosecute such rule against any defaulting attorney or solici- 
tor-general. Any law, usage or custom to the contrary notwithstanding. 
Defaulters 467. Sec. III. The judges of the superior courts shall have power to 
may be im- imprison, as for a contempt, such defaulting solicitor or attorney-general ; 
prisoned. ^^^ during such imprisonment said courts shall have power to appoint 
temporarily, some attorney to execute the duties of such delinquent 
solicitor or attorney-general. 

An Act to compel the Attorney and Solicitors-General of this State, to 
give Bond and Security for the faithful discharge of the duties of their 
respective Offices. And to further define the duties of the Comptroller- 
General, the Attorney and Solicitors-General. — Approved Dec. 20, 1828. 
Attorney and 468. From and after the passage of this act, it shall be the duty of the 
Sols. Gen. to attorney and solicitors-general of this State, and they are hereby required, 
give Bond and ]|^g£Qj.Q tj^gy are qualified and enter upon the duties of their respective 
ecuri y. Q^j^gg^ ^q g^yg j^ond and security to the governor for the time being, and 
Conditions of his successors in office, which shall be judged of and approved by him, in 
the Bond, the sum of |20,000 ; which said bond shall be conditioned to pay over to 
the comptroller-general of the State, all moneys collected as attorney- 
general or solicitors of their several circuits, or otherwise, in behalf of the 
State, to which the State may be entitled ; also, the amount of all sums 
incurred by said attorney and solicitors-general, by reason of failure to 
pay over the same according to the act of 1823 ; and do and perform all 
Where filed, other duties required of them by law. Which said bond shall be filed in 

the comptroller-general's office, subject to the order of the legislature. 
Attorney and 469. Sec. II. It shall be the duty of the attorney-general and solicitors- 
Sols. Gen. general to make an annual report of the state and standing of the claims 
must make -j^ favor of the State, under their control, to the comptroller-general, at 
^ ^ * the commencement of the session of the legislature, showing what suits 
are instituted, and when instituted, and what money may have been col- 
lected during the preceding year ; also, on what cases collected. 
Comp. Gen. 470. Sec. III. It shall be the duty of the comptroller-general to report 
must report to to the legislature at its annual session, all arrears or neglect of duty by 
Legisla ure. ^^^ attorney-general, or either of the solicitors-general. Any law to the 
contrary notwithstanding. 

Solicitor -Gener aV s Bond. 

STATE OF GEORGIA, )^ We, Gliarles Smith, as principal, and John Doe 

Baldwin County. j" and Richard Roe as securities, all of the County 

aforesaid, acknowledge ourselves held and bound to his Excellenfjy 



JUDICIARY.— ATTORNEY AND SOLICITOR-GENERAL. 161 

Joseph E. Brown^ Governor of said State, for the time being, and his 
successors in office, in the sum of twenty thousand dollars, subject to 
the following condition — 

The condition of the above obligation is this — whereas, the above 
bound Charles Smith has been elected Solicitor-General of the Ocmulgee 
District in said State: now, should the said Charles Smith, well and 
truly pay over to the Comptroller-General of said State, all Moneys 
collected by him as Solicitor-General of said District, or which may 
otherwise come into his hands, in behalf of said State, to which the 
State may be entitled. Also, the amount of all sums incurred by said 
Charles Smithy by reason of failure to pay over the same, according to 
the act of 1823. And do and perform all other duties required of him 
by law, then the above obligation to be void ; otherwise, of force. 
This May 1, 1859. 

Approved — Charles Smith, ^rm7. [L.S.] 

Joseph E. Brown, Governor. John Doe, secHy. [L. S.] 

EiCHARD Koe, secHy. [L. S.] 

Aisr Act to make residence in the Judicial District a necessary qualifica- 
tion of the State's Attorney and Solicitors-General of this State. — Ap- 
proved Jan. 17, 1850. 

471. Sec. I. JBe it enacted., That from and after the passage of this act, Solicitor Gen- 
no person shall be eligible to the office of State's Attorney or Solicitor- ^^^} "?^^^^/^* 
General in any Judicial Circuit in this State, who has not been a resident ^^ Xy^qi '^" 
of the District for one year immediately preceding the time of the 

election. 

Sec. II. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act for the Government of Solicitors-General in certain cases therein 
named, and to provide for the payment of the Fees of Witnesses. — Ap- 
proved Feb. 16, 1854. 

472. Sec. I. JBe it enacted, That no JSfolle Prosequi., or entry of settle- ^^ nolle prosc- 
ment, in any criminal cause in the superior court, shall hereafter be con- g-m' until costs 
sented to by the State's attorney or solicitors-general, where the prosecutor and Fees are 
and defendant have agreed to settle ; or where the State's attorney shall ^ 
agree to a Nolle Prosequi., until all costs due to all the officers of court, 

and witnesses' fees, whether the witnesses have been sworn or not, shall be 
paid. And in all cases where the defendant pleads guilty upon an indict- 
ment or prosecution, he shall be liable in law for witnesses' fees, as though 
the witnesses had been sworn. 

473. Sec II. That it shall hereafter be the duty of the State's attorney Solicitor Gen- 
and the several solicitors-general in this State, to settle with the county ^^^^ ™"st ac- 
treasurer of each county within their respective circuits, at the fall term ^^y^^jth °h'^^' 
of the superior court of each county ; and to render in a just and true County Treas- 
return of all moneys which may have come into their hands during said urer. 
year, belonging to said county ; and to pay over to said treasurer all moneys 

which may be found in the said solicitor-general's hands, belonging to said 
county, after a just and fair settlement. 

Sec. III. That all laws and parts of laws militating against this act, 
be and the same are hereby repealed. 

AiJT Act to fix the time of holding Elections for Judges of the Superior 
Courts, Attorney-General and Solicitors-General. — Approved March 1, 
1856. 

11 



162 JUDICIARY.— ATTORNEY AND SOLICITOR-GENERAL. 

Election of 475. Sec. I. Be it enacted^ That from and after the passage of this 
Judges, Attor- act, the regular elections of Judges of the Superior Courts, Attorney- 

ney-Geiie- Geiieral and Solicitors-General, shall be held on the first Monday in 
ral and Solici- ^ ' '' 

tors-General. January ^. • i -, 

Sec. 11. [Kepeals conflicting laws.J 

Aisr Act to elect the Attorney-General for the Middle Circuit, and the 
Solicitors-General for the respective Judicial Circuits of this State, by 
the people ; and for other purposes therein named. — Approved March 
5, 1856. 
Att'rney-Gen- 476. Sec. I. Be it enacted^ That the attorney-general for the Middle cir- 
eral and Solic- cuit, and the solicitors-general for the several judicial circuits of this State, 
itors - General gi^^ll be elected by the people of the respective circuits entitled to vote for 
bv the^neople governor, members to congress and members to the legislature, under the 
same rules and regulations governing said elections. 
When to be 477. Sec. II. That said elections are to take place on the days of 
Elected, and general elections, to wit : on the first Mondays in January, immediately 
^^.g^™^^" preceding the expiration of the term of office of the present incumbents, 
respectively. And said attorney-general and solicitors-general so elected, 
shall be commissioned by the governor, and hold their office for the space 
of four years from the date of said commissions. 
Vacancy how 478. Sec. III. That should any vacancy occur, it shall be the duty of 
filled. Yi\^ excellency the governor, to fill such vacancy by appointment, until the 
first Monday in January next after making said appointments. That his 
excellency shall issue his proclamation, and publish the same at least thirty 
days preceding said election. And the attorney and solicitors-general 
elected according to the provisions of this section, shall hold their office 
for the unexpired term only. 

Sec. IV. [Repeals conflicting laws.] 

Aisr Act to authorize the settlement of Criminal Prosecutions, in certain 
cases. And to regulate, more particularly, the duties of the Attorney 
and Solicitors-General, and fix their liabilities. — Approved Feb. 22, 1850. 
Minor offences ^'^^' ^^^' ^' ^^ ^^ enacted., That from and after the passage of this 
may be settled, act, it shall and may be lawful, in all criminal ofi*ences against tbe person 
or property of a citizen, not punishable by fine and imprisonment, or by a 
more severe penalty, for the oflfender to settle the case with the prosecutor, 
upon the consent of the injured party being obtained, at any time before 
verdict. 
Amount of 480. Sec. II. Upon such settlement made, no more cost shall be re- 
Cost, quired than has accrued up to the time of such settlement. 
Other cases 481. Sec. III. Upon bill found by a grand-jury, for any oflence not 
may be settled embraced in the provisions of the first section of this act, the case shall 
by consent otj^^^ be settled without the consent of the prosecutor shown to the court ; 
Prosecutor. ^^^ without the consent of the court, by order entered on the minutes. 
Attorney or 482. Sec. IV. Any attorney or solicitor-general who shall demand or 
Solicitor- Gen- receive any fee or cost, on any criminal case which has not been tried by a 
eralc^mand- petit jury, except such as are provided for in the first section of this act, 
advance pun- ^hall be guilty of a misriemeanor, and on conviction, shall be punished by 
ishable. fine or imprisonment, at the discretion of the court. 



JUDICIARY.— CHANCERY. 163 



SPECIAL POWERS OF SUPERIOR COURTS. 

483. Sec. LIII. The Superior Courts in the several counties, shall Equity pow- 
exercise the powers of a Court of Equity in all cases where a common law ^^^^"<^ P^c- 
remedy is not adequate to compel parties in any cause to discover on oath, ^^^ *"^^' 
all requisite points necessary to the investigation of truth and justice ; to 
discover transactions between co-partners and co-executors ; to compel dis- 
tribution of intestate estates, and payment of legacies ; to discover fraudu- 
lent transactions, for the benefit of creditors. And the proceedings in all Proceedings 
such cases, shall be by bill, and such other proceedings as are usual in such to ^e by Bill, 
cases, until the setting down of the cause for trial. And the courts shall ^^^" case for 
order the proceedings in such manner as that the same shall be ready for ^^^^ ' 
trial at furthest, at the third term from the filing such bill, inclusive, [see 
510,] unless very special cause be shown to induce the court to continue 
the same, which shall not extend to more than four terms. [And all such Bill how and 
bills shall be read and sanctioned by one of the judges — see 484] and a "^^^^ served. 
a copy thereof served on the opposite party, at least thirty days before 
the filing of such bill in court, [see 509.] And the party against whom ^n^wer. 
such bill shall be filed, shall appear and answer to the same, at the next 
court, {see 510,) and if he, she or they, shall fail to do so, the facts in the^^'^^ taken Pz-o 
said bill shall be taken p7'o confesso, and the court may proceed to decree, ^^¥^^0. 
as to justice shall appertain. 

EQUITY FORMS. 

Commencement and Conclusion of a Bill, 

STATE OF GEORGIA, ) To the Superior Court of said County, exercis- 

Houston County. ( ing Jurisdiction in Equity, in and for said County. 

Respectfully complaining, showeth unto your honor, your Orator, (or 

Oratrix,) John Doe oi said State and County^ That [here state the charges^ 

fully ^ particularly^ and at length.~] 

Conclusion. — May it please your honor to grant unto your Orator, (or 
Oratrix,) the States' writ of Subpoena, to be directed to the said Richard 
Roe^ thereby commanding him, at a certain day and under a certain 
pain therein to be limited and expressed, personally to be and appear 
before the Superior Court, to be held in and for said County on the 
fourth Monday in October next, and then and there, full, true, direct and 
perfect Answer make, to all and singular the premises. And further, 
to stand to, perform and abide such further order, Direction and Decree 
therein, as to said Court shall seem meet and proper. And your Orator 
(or Oratrix,) shall ever pray, etc. 

John M. Giles, CompVt's SoVr. 

Writ of Subpoena. 

STATE OF GEORGIA, I To Richard Roe, of said County— Greeting. 
. ^^o«ston County. [ YoY certain causes to us made known, by the 
Bill of Complaint of John Doe, for Discovery and Relief filed in the 
Clerk's office of the Superior Court of said Countj^, on the Chancery 
side of said Court ; in which said John Doe is complainant and you, the 
said Richard Roe, are defendant, we command and strictly enjoin you 
that laying all business aside, and notwithstanding any excuse you 



164 JUDICIARY.- CHANCERY. 

have, that 3''ou be and appear before us, at our Superior Court, to be 
held in and for said County, on the/ow?'^/i Monday in October next, to 
Answer to all such matters and things as may, then and there, be ob- 
jected against you. And to stand to and abide the further Order and 
Decree, then and there to be made in the premises. 

Witness^ the lionorahle Henry G. Lamar, Judge of said Court, this June 
1, 1859. 

William H. Miller, Glerh. 

Demurrer. 

JOHIS" DOE ) _..,, • -TT- c ' rn 

^^ f Jiill, etc. in Houston buperior Court. 

RICHARD ROE. S Demurrer of the Defendant. 

The Defendant by protestation, not confessing or acknowledging all 
or any of the matters and things in the said Complainant's said Bill 
mentioned to be true, in such manner and form as the same are therein 
and thereby set forth and alleged, doth Demur to said Bill, and for 
cause of Demurrer shows, \here set out the grounds of Demurrer.'] 
Wherefore, and for divers other good causes of Demurrer appearing in 
said Bill, this Defendant doth Demur thereto, and prays the judgment 
of the Court, whether he shall be compelled to make any further and 
other Answer to the Bill. And he prays to be dismissed from hence, 
with his reasonable costs, in this behalf sustained. 

James A. Pringle, DeftsSoVr. 



JOHN DOE 



Plea. 

Bill, etc. in Houston Superior Court. 
Plea of the Defendant. 



vs. 
RICHARD ROE. 

The Defendant by protestation, not confessing or acknowledging all 
or any of the matters and things in the said Complainant's said Bill 
mentioned to be true, in such manner and form as the same are therein 
and thereby set forth and alleged, doth Plead thereunto, and for Plea 
saith, that [here set out the grounds of the Plea.] All which matters and 
things the Defendant doth aver to be true, and Pleads the same to 
the whole of the said Bill ; and humbly demands the judgment of the 
Court, whether he ought to make any Answer to the said Bill of Com- 
plaint, and prays to be hence dismissed with his reasonable costs, in 
this behalf, most wrongfully sustained. 

James A. Pringle, DeffsSoVr. 



JOHN DOE 

vs. 

RICHARD ROE. 



Disclaimer'. 

Bill, etc. in Houston Superior Court. 
The Disclaimer of the Defendant. 



The defendant saving and reserving to himself, now and at all times 
hereafter, all manner of advantage and benefit of exception that may 
be had and taken to the many uncertainties, insufficiencies and imper- 
fections in the said Complainant's said Bill of Complaint contained, for 
a full and perfect Answer thereto, or to such part of it as it materially 



JUDICIARY.— CHANCERY. 165 

concerns this Defendant to make Answer unto, he answereth and saith, 
that [here set out the grounds of Disclaimer.'] And this Defendant doth 
deny all manner of unlawful combination and confederacy, unjustly 
charged against him in and by the said Complainant's said Bill of Com- 
plaint, material or necessary for this Defendant to Answer unto, con- 
fessed or avoided, traversed or denied, is true. All which matters and 
things this Defendant is ready to aver, maintain and prove, as the 
Court shall award ; and prays to be hence dismissed with his reason- 
able costs and charges, in this behalf, most wrongfully sustained. 

James A. Pjringle, Defies SoVr. 

Commencement and conclusion of an Answer. 

STATE OF GEOKGIA, ) The Answer of Richard Roe, Defendant, to the 
Houston County. j Bill of Complaint of John Doe, Complainant. 
This Defendant, now and at all times hereafter, reserving unto him- 
self, all benefit and advantage of exception which can or may be had 
or taken, to the many errors, uncertainties and other imperfections in 
the said Complainant's said Bill of Complaint contained, for Answer 
thereunto, or unto so much and such parts thereof, as this Defendant 
is advised is or are material or necessary for him tonaake Answer unto, 
this Defendant answering saith, that [the Defendant, must Answer accord- 
ing to his knowledge, remembrance, information and belief every material 
fact in the Bill.'] 

Conclusion. — And this Defendant denies all and all manner of un- 
lawful combination and confederacy, wherewith he is, by the said Bill, 
charged ; without this, that there is any other matter, cause or thing, 
in the said Complainant's said Bill of Complaint contained, material or 
necessary for this Defendant to make Answer unto, and not herein and 
hereby well and sufficiently answered, confessed, traversed and avoided, 
or denied, is true, to the knowledge or belief of this Defendant. All 
which matters and things this Defendant is ready and willing to aver, 
maintain and prove, as the Court shall direct ; and prays to be hence 
dismissed, with his reasonable costs and charges, in this behalf most 
wrongfully sustained. 

James A. Pringle, DefH\ SoVr. 

Oath of the Defendant to his Answer. 

*' You, A B, do solemnly swear, (or solemnly, sincerely and truly 
declare and affirm, as the case may be,) that what is contained in your 
Answer, as far as concerns your own act or deed, is true of your own 
knowledge ; and that which relates to the act or deed of any other 
persons, you believe to be true." 

Sworn to and subscribed, j RiCHARD ROE. 

before me, this May 1, 1859. >• 
James Mack, J. P. ) 

An Act to repeal a part of an act entitled " an act to revive [revise] and 
amend the Judiciary System of this State, passed on the IGth day of 
Feb., llQ^.—Ap2Jroced Dec. 24, 1827. 
484. So much of the said above-recited act as requires the judges of the 



166 JUDICIAEY.—CHANCERY. 

Bills that superior courts, or one of them, to read and sanction bills in equity, other 
must be read than bills of injunction, 7ie exeat^ and quia timet^ before the filing of said 
and sanct- \y\\\^ \^^ court, shall be and the same are hereby repealed. 

An Act to authorize the Judges of the Superior Courts of this State, to 

appoint Receivers during vacation. And to require the Complainant, in 

all cases, asking for writs of JSTe JExeat^ Quia Tbnet, and all applications 

asking for the appointment of a Receiver, or for Injunction, to give 

Bond and Security to the Respondent, for any loss or damage which he 

or they may sustain by the suing out of said Writs. And for other 

purposes. — Approved March 4, 1856. 

Receiver may 485. Sec. I. Be it enacted^ That from and after the passage of this 

be appointed act, the judges of the superior courts, in this State, shall have power and 

in vacation, authority to appoint receivers, in vacation, upon such a case made as will 

now, by law, authorize the appointing of the same, in term-time. 

Bond must be 486. Sec. II. That before any writ of injunction, 7ie exeat ^ quia timet ^ 

given by the or any writ appointing a receiver, shall hereafter be issued by the judges 

Complainant. Qf ^he superior courts of this State, or by the court, the complainant shall 

give bond and security to the respondent, fully to respond to any damage 

which the respondent may sustain, by reason of the issuing of said writs, 

or the appointment of the said receiver. — \See 487.] 

Complairianfs Bond. 

STATE OF GEORGIA, i We, John Doe as principal, and Richard Roe as 
^oMs^on County. J security, both of the County and State aforesaid, 
acknowledge ourselves held and bound to Charles Smithy of the County 
and State aforesaid, in the sum of one thousand dollars; subject to the 
following condition — 

The condition of the above obligation is as follows: — Whereas, said 
John Doe has filed his Bill of Complaint, against said Charles Smithy 
in the Clerk's Office of the Superior Court of said County, returnable 
to the October Term of said Court, next ensuing. In which Bill of 
Complaint said John Doe prays the issuing of the States' Writ of 
Injunction: now, should the said John Doe^ fi^^y respond to any dam- 
age which the said Charles Smith may sustain, by reason of the issuing 
of the said Writ o^ Injunction^ then this above obligation to be void; 
otherwise of force. This 3Iay 1, 1859. 

Attest — John Doe, princ'al. [L. S.]- 

James Mack^ J. P. Richard Roe, secHy. [L. S.] 

An Act to amend an act entitled " an act to authorize the Judges of the 
Superior Courts of this State, to appoint Receivers, during vacation. 
And to require the Complainant, in all cases asking for Writs of Ne 
JSxeat^ Quia Tiniet^ and all applications asking for the appointment of 
a Receiver, or for Injunction, to give Bond and Security to the Respond- 
ent, for any loss or damage which he or they may sustain by the suing 
out of said Writs ; and for other purposes," approved March 4th, 1856; 
so as to allow the issuing any of the aforesaid Writs, upon the applicant 
making oath, that from his poverty, he is unable to give such Bond and 
Security. — Approved Dec. 22, 1857. 
Writs to issue 437. Sec. I. That said act be so amended that any of the writs therein 
nlain'T makes ^^^^^^^iied, shall issue upon complainant attaching to his bill an affidavit, 
affidavit of his that he is advised and believes that he has a good and legal cause of action, 
inability. 



JUDICIARY.— CHANCERY. 167 

and that from his poverty, he is unable to give the bond and security 
required by such act. 

Sec. II. [Repeals conflicting laws.] 

Affidavit of Complainant. 

STATE OF GEORGIA, ] In. person appeared before the undersigned, 
Houston Couaty. J John Doe^ Complainant in the foregoing Bill, who 
being sworn saith, that from his poverty, he is unable to give the Bond 
and Security, required in cases of Injunction^ and therefore prays, the 
issuing of the State's Writ of Injunction^ without Bond and Security. 

Sworn to and subscribed, 1 
before me, this May 1, 1859. \ JOHN DOE. 

James Mack, J. P. ) 

Sanction of the Judge* 

In Chambers, May 1, 1859. 

STATE OF GEORGIA, | J'q {Ji^ Clerh of the Superior Court of Houston 
Bibb County. j County. 

Read and sanctioned. — Let the State's Writ of Injunction issue ; 
directed to the Defendant, his Confederates, Servants and Agents, each 
in the sum of ten thousand dollars, according to the prayer of the Bill. 
And let such other proceedings, as are usual and necessary, in Equity, 
be had. 

Witness my hand and official signature. 

Henry G. Lamar, J. S. C. M. C. 

Writ of Injunction, 

STATE OF GEORGIA, i J'o Richard Boe, his Confederates^ Servants and 
Houston Count J. \ Agents. — Whereas, John Doe has preferred his 
Bill of Complaint, against you, returnable to the October Term, eight- 
een hundred and fifty-nine, of the Superior Court of said County, 
showing that [here state hriefly hut accurately^ the substance of the Bill.'] 
And whereas, the said John Doe^ by his said Bill, prays the issuing of 
the State's Writ of Injunction, to be, forthwith, issued, to stay [Jiere 
state the object of the Injunction.'] And the said John Doe, having verified 
the facts and statements of said Bill, on oath. And said Bill having 
been read and sanctioned by the Judge of said Court ; therefore, you, 
the said Richard Roe, and all and every, the persons before mentioned, 
are hereby commanded and strictly enjoined, that you and every of 
you, do from henceforth, altogether and absolutely desist from \here 
state the object of the Injunction,] until said Superior Court shall make 
further Order to the contrary. 

To the Sheriff of the County of Houston. — You are hereby commanded 
to give notice hereof to the said Richard Roe, and all the persons before 
mentioned, by leaving a true and attested copy of the foregoing Writ, 
with the said Richard Roe, and the other persons above mentioned ; 
and by requiring the said Richard Roe, and other persons, each, to enter 
into Bond, payable to said John Doe, with good security, in the sum 
of ten thousand dollars, to observe and abide by the conditions and 
requirements of the forgoing Order. Fail not, &c., and make return 



168 JUDICIARY.— CHANCERY. 

of this Writ to the Superior Court, to be held in and for said County, 
on the fourth Monday in October next. 

Witness J the honorable Henry G. Lamar ^ Judge ^f said Court^ this May 
2, 1859. 

William H. Miller, Clerh. 

Writ of Ne Exeat. 

STATE OF GEORGIA, ) To the Sheriff of said County— Greeting : 

Houston County. | Whereas, John Doe has filed his Bill of Complaint, 
against Richard Roe, of said County, in the Superior Court of said 
County, returnable to the October Term of said Court ; which Bill is 
verified by the oath of said John Doe ; and which Bill has been read 
and sanctioned by the Judge of said Court. In which Bill it is made 
known, that [here state briefly^ but accurately^ the substance of the Bill.~\ 
And whereas, said John Doe^ by his said Bill, prays the issuing of the 
State's Writ of Ne Exeat^ directed to said Richard Roe^ commanding 
and requiring him, not to rcD^ove beyond the jurisdictional limits of said 
Court; therefore, you the said Sheriff, are hereby commanded, in the 
name of the State of Georgia, to arrest him, the said Richard Roe^ and 
he being arrested, safel}^ and securely to keep, in your custody, until he 
shall enter into Bond with good and ample security, in the said County 
of Houston, in the sum of one thousand dollars, payable to the said John 
Doe, conditioned that tlie said Richard Roe will not remove beyond the 
jurisdictional limits of the Superior Court of the County of Houston, with- 
out the Order and permission of said Court. And in case of the 
neglect or refusal of the said Richard Roe, to enter into the said Bond 
and security, as aforesaid, you are hereby commanded and authorized, 
to confine the said Richard Roe, in the common jail of said County of 
Houston, or some other secure place, there to remain, without bail or 
mainprize, until the further Order of the said Court, in the premises. 
And you are further commanded to give notice hereof, to the said 
Richard Roe, by serving on him personally, a true and attested copy of 
the foregoing Writ. Fail not, &c., and make return of this Writ, to 
the Superior Court to be held in and for the County aforesaid, on the 
fourth Monday in October next. 

Witness, the honorable Henry G. Lamar, Judge of said Court, this May 
8, 1859. 

William E. Miller, Clerh. 

Quia Timet. 

STATE OF GEORGIA, x ^„, ^ . ,^. 

Houston County. i ^^11 Q^^^ Timet, &C. 



JOHN DOE 

vs. 

RICHARD ROE. 




Houston Superior Court. 



To John L. Halstead, Sheriff of said County. 

Whereas, the Complainant in the above Bill, (which is verified by 
the oath of the Complainant,) has presented the same to the honorable 
Henry G. Lamar, Judge of the Superior Courts of the Macon Circuit, 



JUDICIARY.— CHANCERY. 169 

by whom said Bill has been read and sanctioned. And whereas, said 
John Doe^ in said Bill has prayed the issuing of a Quia Timet^ in con- 
formity to law, to stay and prevent all the wrongs and injurievS, in said 
Bill, complained of. You are, therefore, hereby commanded, to arrest 
the body of the said Richard Roe, and him safely and securely keep in 
your custody, until he shall enter into Bond with good security, pay- 
able to the Complainant, in the sum o^ five thousand dollars, conditioned 
that he will not [here state the object of the Quia Timet.'] And return 
the said Bond to the Superior Court, to be held in and for said Countj^, 
on the fourth Monday in October next, together with this precept, with 
your actings and doings thereon. Herein fail not. 

Witness^ the honorable Henry G. Lamar, Judge of said Court, this May 
1, 1859. 

William H. Miller, Clerk. 

An Act to authorize any one Distributee or person interested in an 
Estate, to institute proceedings in Equity, without joining as Complain- 
ants or making Respondents, other Distributees, residing in the juris- 
diction of the Court. — Approved Dec. 29, 1836. 

488. From and after the passage of this act, it shall and may be lawful ^'^^ Distribu- 
for any one distributee or person interested in any estate, to institute his ^^[yq Distri- 
or her bill or other proceeding in equity to compel an account or distribu- bution of an 
tion of an estate, without joining as complainants or making respondents, Estate, 
the other distributees or persons liaving an interest in said estate, residing 

within the jurisdiction of the court : Rrovided however, it shall be the -^^J Parties 
duty of such complainant, to state in his or her bill or other equitable pro- ^^ .^^ ^^^ gjjj' 
ceeding, the names of all the distributees or persons having an interest in 
said estate, that the court may be enabled to ascertain the amount of the 
distributive share to which said complainant is entitled, as nearly as prac- 
ticable. 

An Act to regulate the Publication of Rules, Writs, Bills, Orders and 
Precepts of Court, relative to cases in Equity ; to fix the Cost thereof, 
and to amend certain defects, &q,. — Approved Dec. 29, 1838. .. . . 

489. Sec. I. When service of any process, writ, bill, order or rule of Equity Pre- 
court, relating to cases in equity, shall be required to be made by publica- cepts how 
tion in any of the public gazettes of this State, the publication of the made, 
same, as aforesaid, once a month for four months, shall be deemed, held 

and taken to be sufficient ; and the clerk shall receive for such publica- 
tion, the sum of five dollars. 
Sec IV. [Repealing section.] 

An Act to regulate proceedings in Equity. — Approved Dec. 23, 1839. 

490. Sec I. De it enacted.^ That when a complaining party seeks Decree for 
through a court of equity, the specific performance of an agreement to Specific Per- 
convey land, and a jury shall find in favor of the complaining party, it^^^^^uT^^^* 
shall be the duty of the court to cause the description of the land to be set tain etc. 
forth in the judgment of the court, and signed by the attorney of the com- 
plainant ; which judgment shall be entered on the records of the court, 

if for land, and shall be recorded in the county where the land lies. 

Which judgment and decree shall pass the title, without any act to be Decree passes 

done by the defendant. And such judgment or decree having been Title. 



170 JUDICIARY.— CHANCERY. 

recorded, shall be as effectual to transfer the property as the deed of the 
defendant : (Provided^ that the said judgment or judgments shall not affect 
any person except the party or parties to said bill, further than the deed 
of the defendants would have done, if executed in pursuance of said 
decree.) And as decisive of the title as if the complainant had recovered 
in ejectment. And a writ of possession shall issue, as in case of a recovery 
in ejectment, when the defendant to the bill is in possession. 

An Act to amend an act entitled " an act to amend an act entitled an act 

to revise and amend the Judiciary System of this State." And also to 

amend an act entitled " an act to alter and amend the sixth section of 

^ the Judiciary Act of this State, passed in the year 1799," so far as 

relates to the Notices provided for in said section. And to prescribe 

the mode of issuing Scii'e Facias therein provided for. — Apjjroved Jan. 

29, 1850. 

Production of 491. Sec. I. ^e i^5 e^ac^ec?, That the provisions of the above-mentioned 

Books, etc., acts, in relation to producing books, writings, papers, &c. shall extend to 

may be re- causes in equity, in the same manner, in every respect, as they now extend 

quired in ^^ ^^^ embrace any other causes : Provided^ that nothing herein con- 

commOTi law. tained shall be construed to restrain the powers of courts of equity, to 

effect the same object by other means. 

An Act declaratory of the law of this State relating to Appeals in the 
Superior Courts. — Approved Pec. 27, 1843. 
ADoeal in ^ ' ^^^* ^* -^^ ^^ enacted.^ That in all cases hereafter to be tried in 
Equity causes the superior courts of this State, on the equity side thereof, either party 
the same as at who may be dissatisfied with the verdict of the jury, may enter an appeal 
common law. jn like manner and under the same limitations and conditions as are pre- 
scribed in cases at common law ; which appeal shall be tried by a special 
jury, under the provisions governing common law cases. 

An Act to authorize the Judges of the Superior Courts to grant Writs of 
Ne Exeat in certain cases therein mentioned. — Approved Pec. 6, 1813. 
WTiereas., great evils have existed and do yet exist in this State, in con- 
sequence of the law of England regulating writs of JSFe Pkceat not having 
provided for cases where the demand set forth by the Complainant is not 
due. And lohereas., no provision is made for cases of Joint-Obligors, or 
Joint and several Obligors, when part of them remove or are about re- 
moving without the jurisdictional limits of this State, without making sat- 
isfaction to the Obligee, or to the other Obligor or Obligors ; by reason 
whereof, the payment of the debt devolves on the Obligor or Obligors 
who remain within the State, and that too, without the possibility of com- 
pelling the Obligors or Obligor removing, to pay or secure the payment 
of their proportionable part to the Obligee, or the complaining Obligors ; 
for remedy whereof — 
^ ., . „ 493. Sec. I. Be it enacted, That from and after the passage of this act, 
^eaimayiss'e^^® judges of the superior courts shall, and they are hereby authorized, to 
for demands grant writs of ne exeat.., as well in cases where the debt or demand is not 
not due. actually due, but exists fairly and bond fide in expectancy, at the time of 
making application, as in cases where the demand is due. And all the pro- 
ceedings shall be as heretofore practised in this State, in restraining the person 
and property of the defendant, until he secures to the complainant the pay- 
ment of the demand, or shows good cause to the court why he should not pay 
the same. All other proceedings to be in the same way as practised under 
this writ in other cases. — [>S'ee 498.] 



JUDICIAEY.— CHANCERY. I7l 

494. Sec. II. In case of joint or joint and several oblio;ors, if any one or Joint-Obligor 
more of them are about to remove without the jurisdictional limits of this may have iVe 
State, and are carrying off their property, leaving one or more fellow-obligors pellow^ObU- 
bound with them, for the payment of any debt, penalty, or for the delivery of gor. 
property at a certain time, which time has not arrived at the time of such 
removal, such obligor or obligors who remain, shall have the benefit of the 

writ of ne exeat, to compel the removing obligor to secure the pavfnent of 

his part of the debt, penalty, or of the delivery of the property. And also, 

in cases of security, the security shall have all the benefit of the writ of ne Security may 

exeat against his principal or fellow-security, where the obligation or debt is have the like 

not yet due, and the principal or either of the securities are about removing ^ ^ ^' 

without the State : Provided 7ievertheless^ that in all cases arising under this 

act, the party complaining shall pursue the legal form and course of law, as 

heretofore practised in this State. Anything herein contained to the contrary 

notwithstanding. 

An Act to authorize the several Courts of Equity in this State, to grant reme- 
dies in certain cases. And to regulate the Courts of Law and Equity in 
this State, &c. — Approved Nov. 23, 1814. 

495. Sec. I. Where any person or persons has or shall run out of this Judge to give 
State, the property of a deceased person or persons, to the injury of the remedy ag'st 
orphans of said deceased ; or to the injury of the next of kin, entitled to the ?5^^^ off^Or- 
same, it shall and may be lawful for the judges of the several courts of equity phan's prop- 
in this State, upon application and the facts being stated, on oath made to the erty. 
truth thereof; and also, the property being described, and its value sworn to, 

by the person or persons entitled to said estate, his, her or their agent or 
attorney, to give the party a remedy, either by arresting the defendant, or 
taking his property, or both, as the court in its discretion, shall deem neces- 
sary and proper: Provided always, that the judge granting the same, shall 
take good security of the party, his, her or their agent or attorney, in double 
the amount sworn to. to make good all costs and damages the defendant shall 
sustain, if the plaintiff shall discontinue or be cast in said suit. 

496. Sec. II. The defendant if arrested, and his property also, if taken, Defendant 
shall be discharged and returned to him, on his giving good security to per-^^^ ^Yl^ ^^" 
form the order and decree of the court. ^^^" ^' 

497. Sec. III. If . the defendant fiiils, or neglects, or refuses to give such If Defendant 
security, the court may make such disposition of the property as in its dis- ^^^^^' ^-^^^ 
cretion it shall deem most advantageous to the parties on both sides. ^^^ ^ ^°^' 

Bond given ly the Plaintiff. 

STATE OF GEORGIA, | We, John Doe, as principal, and Richard Roe, 
Homton County. j" as security, both of said State and County, ac- 
knowledge ourselves held and bound to Charles Smith, of the same 
place, in the sum of ten thousand dollars, subject to the following con- 
dition — 

The condition of the above obligation is as follows — whereas, said 
John Doe, next friend of William Jones and Jane Jones, orphans of John 
Jones, deceased, late of said County and State, has filed his Bill of 
Complaint in the Superior Court of said County, against said Charles 
Smith, charging said Charles Smith with having run out of this State, 
certain property in said Bill of Complaint described, (valued in said Bill 
of Complaint, at the sum of five thousand dollars,) belonging to the 
Estate of said John Jones, and to which said Orphans are entitled : 



172 JUDICIAEY.— CHANCERY. 

now, should the said John Doe make good all costs and damages the 
said Charles Smith shall sustain in consequence of said proceedings, 
provided said John Doe shall discontinue or be cast in his said suit, 
then the above obligation to be void; otherwise, of force. This May 
1, 1859. 

Attest — John Doe, x^rind'pal^ [L. S,] 

James Mack^ J. P. Kjchakd Eoe, security^ [L. S.] 

Bond given by the Defendant. 

STATE OF GEORGIA, ) We, Charles Smith, as principal, and John Fox, 
Houston Gowniy. j" ^g security, both of the County and State afore- 
said, acknowledge ourselves held and bound to John Doe, next friend 
of William Jones and JancJones^ Orphans o^ John Jones, deceased, late 
of said County, in the sum o^ ten thousand dollars, subject to the fol- 
lowing condition — 

The condition of the above obligation is as follows — whereas, John 
Doe, as the next friend of William Jones and Jane Jones^ Orphans olJolin 
p. Jones, deceased, late of said County, has exhibited in the Superior 
Court of said County, his Bill of Complaint against the said Charles 
Smithy charging him with having run out of said State, certain property 
in said Bill of Complaint mentioned, of the value oi five thousand dol- 
lars, belonging to the Estate of said John Jones, deceased, *and to which 
said Orphans are entitled. And whereas, said Charles Smith has been 
arrested by virtue of an Order to said Bill of Complaint annexed, by 
the honorable Henry G. Lamar. Judge of said Court : now, should the 
said Charles Smith, well and truly, do and perform, the Order and 
Decree of the Court in the premises, then this obligation to be void; 
otherwise, of force. This May 1, 1859. 

Attest — Charles Smith, principal, [L. S.] 

James Mack, J, P. John Fox, security, [L. S.j 

An Act to prescribe the mode of proceeding under Writs of Ne JEjxeat., 
and to amend the laws regulating the granting of Writs of Injunction 
by the judges of the Superior Courts of this State. — Approved Dec. 22, 
1830. 
Defendant in 198. In all cases where persons may be hereafter arrested by virtue of 
Ne Exeat may writs of ne exeat, they shall be discharged on their giving bond with good 
give Security, and sufficient security, either that they will not depart this State, or for 
the payment of the eventual condemnation money. 
Where the ^^^- ^^^- ^' ^" ^ cases in equity, when the judge of any circuit may 
Judge is inter- be a party to such suit ; or when the complainant will and shall make an affi- 
ested, any davit, that the judge of the circuit where the cause is pending or to be in- 
other Judge gtituted, is interested in the subject-matter of such cause in equity, it shall 
Klls^etc!^'^ and may be lawful for any judge of the superior courts of this State, to 
sanction such bills in equity, and grant such writs of injunction and othei's, 
as may be according to law, to affect the object of such bills. 



Affidavit of the Complainant, 

In person appeared before the undersigned, 
Charles Smith, Complainant in the within Bill 
of Complaint, who after being sworn, saith that honorable Henry 0, 



STATE of GEORGIA, 
Houston County. 



JUDICIARY.— CHANCERY. 173 

Lamai\ Judge of the Superior Courts of the Macon Circuit, is interest- 
ed in the subject matter, in the said Bill of Complaint mentioned, and 
which is now pending in the Superior Court of the County aforesaid. 

Sworn to and subscribed, ) 
before me, this May 1, 1859. V ChAKLES SmITH. 

James 3fack, J. P. ) 



Bond of Defendant in Ne Exeat. 

STATE OF GEORGIA, ) We, John Doe as principal, and Richard Roe as 
Houston County. j security, acknowledge ourselves held and bound 
to Charles Smith, of the County and State aforesaid, in the sum of two 
thousand dollars, subject to the following condition — 

The condition of the above obligation is as follows — whereas, said 
John Doe has been arrested by virtue of a Writ of Ne JJxeat^ (issued 
in favor of said Charles Smithy and annexed to his Bill of Complaint^ 
returnable to the Superior Court of said County,) which writ of Ne 
Exeat is for the sum of one thousand dollars, requiring the said John 
Doe not to remove beyond the jurisdictional limits of this State ; now, if the 
said John Doe (shall not depart this State until the final order of said 
Court,) then this obligation to be void; otherwise of force. This May 
1, 1859. 

Attest — John Doe, principal. [L. S.] 

James Mackj J. P. Eichard Roe, security. [L. S.] 

An Act to authorize the issuing of Writs of Ne Mceat at the instance of 
persons claimmg personal property in Remainder and Reversion, and to 
preserve the rights of such persons. — Appiroved Dec. 23, 1830. 

500. It shall and may be lawful for any judge of the superior courts of Remainder- 
this State, on application to him by bill at the instance of any person or man orRever- 
persons claiming personal property in remainder and reversion, to sionev may- 
grant a writ of ne exeat^ or other sufficient jDrocess, to restrain the per- ^^"^'^ ^^ Exeat. 
son or persons having the control or possession of such property, from re- 
moving the same beyond the limits of this State. Or to give good and 
sufficient security, residing in the county, to the party claiming, in a suffi- 
cient penalty, to be fixed by such judge, that the property shall be subject 

and accessible to the demand of the person or persons entitled thereto, in 
the county wherein such property may be at the time of issuing such writ : 
Provided., that the person or persons, or one of them, suing for the benefit 
of such writ, shall make affidavit of his, her or their right to, and of the 
value of the property in question. And that he, she or they, entertain 
serious apprehensions, that the property will be removed beyond the limits 
of this State; and that his, her or their rights will be impaired, unless a 
remedy be afibrded for the preservation thereof. 

501. Sec II. The superior court shall, at the term to which such v/rit New or addi- 
and bond may be returnable, and at any subsequent term, on exceptions tional security 
to the sufficiency of the bond or of the security, or on a representation on i»ay be re- 
oath, that the securities, or some of them, have removed or are about to ^"^^^ ' 
remove from the county, determine thereon, and may in its discretion, 

require a new bond or additional security, for the preservation of the prop- 
erty in controversy. And may pursue such course therein, and in the 
matter of said bill, as to justice may seem proper. 



174 JUDICIARY.— CHANCERY. 

Affidavit of Remainder -man, 

STATE OF GEORGIA, | In person appeared before the undersigned, Chals, 
Houston County. j" Smithy who after being sworn, saith tliat he is 
Remainder-man of the property in the within Bill of Complaint de- 
scribed and set forth ; that John Doe is entitled to a present interest, 
{a lifc estate^) in said property, and has the possession thereof; that said 
property is of the value of one thousand dollars. And the said Charles 
Smith further swears, that he entertains serious apprehensions that the 
said property will be removed beyond the limits of this State, and 
that thereby his rights in said property will be impaired. 

Sworn to and subscribed, ) 
before me, this May 1, 1859. > ChaRLES SmITH. 

James Mack, J. F. ) 

Bond of Person in Possession. 

STATE OF GEORGIA, ) We, Joh?! Doe as principal, and Richard Roe as 
Houdon County. j security, both of the State and County aforesaid, 
acknowledge ourselves held and bound to Charles Smithy of the same 
place, in the sum of two thousand dollars, subject to the following con- 
dition — 

The condition of the above obligation is as follows — whereas, said 
Charles Smithy has filed in the Superior Court of said County, his Bill 
of Complaint against said JohnDoe^ (to which has been annexed the writ 
of Ne Exeat^ whereby said Charles Smith claims as Remainder-man 
certain property in said Bill of Complaint mentioned, (which property is 
now in the possession of said John Doe^ who has a ?i/e interest therein,) 
and which property is valued in said Bill of Complaint^ at the sum of 
one ^/iow.5a7Z(i dollars : now, should the said John Doe^ well and truly, 
keep said property in said Bill of Complaint mentioned, subject and 
accessible to the demand of said Charles Smith. Remainder-man^ as 
aforesaid, (or not remove said property beyond the limits of this State, 
as the case may be,) then the above obligation to be void ; otherwise 
of force. This May 1, 1859, 

Attest, — John Doe, principal. [L. S.] 

James Mack^ J. P. ElCHARD EoE, security. [L. S.] 

An Act to provide for taking the Answers of Parties to Suits, in this 
State, when such Parties reside without the limits of this State. And 
for other purposes. — Approved Feb. 17, 1854. 
TT A 502. Sec. I. Be it enacted^ That whenever any party to any bill in 

etc., of non-' chancery or suit at common law, now pending, or which may hereafter be 
resident Party commenced in any of the courts of this State, now resides or shall reside 
may be taken, without the limits of this State, but in one of the States or Territories of 
the United States, and it shall be necessary or proper for such party to 
make answ^er under oath, to a bill in chancery or to interrogatories tiled 
under the several acts of this State, to comj^el discoveries at common law, 
or to respond to any notice to produce deeds or other documents in writ- 
ing, it shall and may be lawful for such party to make oath to such answer 
or response, before any officer of the State or Territory in which such 
party resides or shall reside ; and where such affidavit shall be made [be- 
fore any officer'] duly authorized by the laws of said State or Territory to 
administer oaths ; and that the official signature and attestation of the 
officer administering the oath to such party, shall be sufficient evidence of 
he said affidavit having been made as it shall purport to have been made ; 



JUDICIARY. -CHANCERY. 175 

and the same shall be received in evidence in the courts of this State, in 
the same manner and to the same extent as if the same had been made 
before some officer of like character of this State : Provided^ that the 
official character of the officer attesting said affidavit, shall be properly- 
proven by a certificate of the governor, the secretary of State, the chan- 
cellor or keeper of the great seal of the State or Territory in which such 
affidavit shall be made, or in the manner now prescribed by law, for prov- 
ing the official character of magistrates attesting the affidavits of witnesses 
to deeds, where such affidavits are made without the limits of this State. 

An Act declaratory of the fifty-third section of an act, entitled " an act to 
amend an act, entitled an act to revise and amend the Judiciary of this 
State, passed 16th February, 1799." — Approved Dec. 21, 1820. 
Whereas., the said recited section is in the words following, to wit : 
" That the Superior Courts in the several counties shall exercise the powers 
of a Court of Equity, in all cases where a common-law remedy is not ade- 
quate to compel parties in any cause to discover on oath, all requisite 
points necessary to the investigation of truth and justice ; to discover 
transactions between co-partners and co-executors ; to compel distribution 
of intestate estates, and payment of legacies; to discover fraudulent trans- 
actions, for the benefit of creditors. And the proceedings in all such 
cases, shall be by bill, and such other proceedings as are usual in such cases, 
until the setting doAvn of the cause for trial. And the courts shall order 
the proceedings in such manner as that the same shall be ready for trial 
at furthest, at the third term from the filing such bill inclusive, unless very 
special cause be shown to induce the court to continue the same, which 
shall not extend to more than four terms. And all such bills shall be read 
and sanctioned by one of the judges, and a copy thereof served on the 
opposite party, at least thirty days before the filing of such bill in court. 
And the party against whom such bill shall be filed, shall appear and an- 
swer to the same at the next court ; and if he, she or they, shall fail to do 
so, the facts in the said bill shall be taken pro confesso j and the court may 
proceed to decree as to justice shall appertain. And ichereas., under the 
construction of the said recited section, the equity side of the court has 
drawn to itself exclusively, all cognizance of the cases in said section enu- 
merated, even when such cases depend upon aliunde proof, to the manifest 
embarrassment of justice in many cases, to the injury of the good citizens , 

of this State ; for remedy whereof — 

503. JBe it enacted^ That from and after the passing of this act, whenever Parties not 
[m] any of the cases enumerated in the before-recited section, a plaintifli'.^^ompelled to 
or complainant shall conceive that he, she or they, can establish his, her or institute their 
their claim, without resorting to the conscience of the defendant, it shall eery, 
and may be lawful for every such plaintiff or complainant to institute his, 

her or their action upon the common-law side of the court, and shall not 
be held to proceed with the forms of equity. Any law or usage to the 
contrary notwithstanding. 

504. Sec. II. All parties in any of the cases mentioned in the before- Parties may 

recited section, after the commencement of the action at common-law, resort to 

may, during the progress of said suit, file his, her or their bill for the dis-^^"**^^ ^" ^^'^ 

covery of testimony in aid or defence of his, her or their common-law k^ common- 
,..11 1 .1 1 iciw Action. 

action, m all cases where the same may be necessary. 

An Act to provide for the speedy trial of certain cases in Courts of Law 

and Equity in this State, and for other purposes connected therewith. 

Approved March 6, 1856. 

505. Sec. I. Be it enacted^ That all actions at law, or suits in chancery 



176 JUDICIARY.— CHANCERY. 

All the mem- now pending in the courts of this State, or which may be hereafter insti- 
bers of a Com- t^ted, against the members of private associations, joint-stock coftipanies, 
pany need not ^j, ^^le members of existing or dissolved corporations, to recover a debt or 
ties. debts due by the association, company or corporation of which they are, 
or have been members ; or for the appropriation of a fund in their hands 
to the payment of such debt ; it shall not be necessary as heretofore re- 
quired, that all the members of such association, company or corporation, 
shall be made parties in suits hereafter instituted, or continued parties in 
such as are already pending, nor any other person than the party suing, 
to be made plaintiif or complainant ; but the plaintiff and complainant in 
such suits, may institute the same and proceed to judgment therein ; and 
also, in those already instituted against any one or more of the members 
of such association, company or corporation, or any other person, plaintiff 
or complainant, and recover of the member or members so sued, the 
amount of unpaid, stock in his or her hands, or any other indebtedness of 
TT- f • J such member or members : Provided^ the same does not exceed the 
ment extin£ amount of his or her debt against said association, company or corporation, 
and in that event, so much only as will be sufficient to satisfy saict debt. 

506. Sec. II. That nothing in this act shall be so construed as to pre- 
vent the members who may be sued, after he or they have paid the 
amount so recovered, from suing his or their associates for contribution, if 
under the rules of law and equity, he or they are entitled to the same. 
Sec. III. Repeals conflicting laws. ^ 

An Act to authorize the Judges of the Superior Courts as Chancellors, to 

make certain Orders and Decrees. — Approved Feb. 20, 1854. 

Chancellor ^^7. Sec. I. Be it enacted^ That the judges of the superior courts of 

may pass cer-the several judicial districts of this State, shall be and they are hereby 

tain Orders respectively authorized, at Chambers, upon petition or bill and answer, 

in" Chambers "^^^^^^ ^ parties in interest are represented and consenting, and where 

" there is no question of fact in dispute, to make and pass all orders and. 

decrees, in relation to the appointment or removal of trustees, and the sale 

or division of trust or other property; or the investment of trust or other 

funds. And such orders and decrees shall be as valid as if passed and 

made during the regular session of the superior court of the county, on 

Clerk must the verdict of a jury ; and the ^proceedings in any such case, shall be regu- 

recoid them, larly recorded with the other proceedings of said court, and the order or 

decree entered in the book of minutes thereof. 

An Act to amend an act for the better protection and security of Orphans 
and their Estates, approved February 18th, 1799, by extending the pro- 
visions of the fifth section thereof to Trustees and their estates. — Ap- 
proved Feb. 10, 1854. 
Estate of 508. Sec. I. JBe it enacted.^ That from and after the passage of this act, 
Trustee liable the provisions of the fifth section of the above recited [ac^,] be and the 
for waste, etc. game are hereby extended and made applicable to the estates of all trus- 
tees in this State who may have converted to their own use, wasted, 
destroyed or died chargeable to the estates of their cestui que trust : 
If Trustee h d -f*^^^^'<^^66?, said trustees have had the actual possession, control and man- 
possession' agement of the property vested in them, as such. — [See Fx'r and Adrn'r.] 
Sec. II. That all laws and parts of laws militating against this act, be 
and the same are hereby repealed. 

An Act to alter and amend the practice in Courts of Equity, in this State ; 
and to speed causes therein ; and prevent delays of Justice. — Approved 
Dec, 22, 1857. 



JUDICIARY.— CHANCERY. 177 

509. Sec. I. JBe it eviacted^ That bills shall be served on the defend- Service 30 
ant, at least, tMrty days before the term of the court to which the bill is ^'"^Y^ before 
returnable. ^«^^*- 

510. Sec. II. That all equity causes shall stand for trial at the second When to be 
term of the court, from the filing of the bill, and service thereon on tried, 
defendant or defendants. 

511. Sec. III. That it shall not, hereafter, be necessary to file replica- Replication 

tion, or take any order, setting^ down a case for trial, as now practised in ^^ r^^rLJIl^ 
' •' •TPT T'-rv* -t ^^" necessary, 

this State ; but, upon service on deiendants, piaintiii may, at once, proceed 

to prepare his case for trial. 

512. Sec. IV. That at the first term of the Court, the defendant may May Demur or 
plead, answer, or demur, and if a demurrer, or plea, is filed, the said plea or P^ead at first 
demurrer, or both, shall be tried and disposed of; at the first term of the o^^rruled ^ 
court to which the bill is returnable ; and if overruled, defendant shall file must Answer 
his answer within thirty days from the time of the judgment on such in 30 days, 
demurrer or plea ; and if such answer is not full, exceptions may be taken Exceptions to 
thereto ; and on ten days' notice, may be argued and disposed of, in vaca- ^Z^be -^ 
tion ; and defendant required to answer fully, at such time and on such gued in vaca- 
terms as the judge may order or direct. tion. 

513. Sec. V. That defendant, if in his judgment he has an equitable Cross-Bill 
defence, shall not be forced, or obliged, to file a cross-bill, but may set up need not be 
such equitable defence in his answer, and pray for and obtain such relief, as ^^^^,^!^ i^ 
he may be entitled to upon the principles of justice, in as full 'and ample a pondent has 
manner as he would now be entitled to under a cross-bill. And may, if he an Equitable 
desires it in writing, in his answer, compel an answer from plaintiff*, at such demand 
time and upon such terms as the court may order and direct. against^ the 

514. Sec. VI. That either party may examine, in open court, the opposite parUes^may' 
party, on the stand, as a witness, notwithstanding the answer may be filed, be examined 
upon serving such party with subpoena, as now provided by law, when such in open court, 
party resides in the county where the trial is had ; and if such party resides ^^ ,'^^J^^^^^®? ' 
out of the county, may sue out commission and examine such party, as now gjon- or Dcr- 
provided by law. And if the party is in court, at the time of trial, he may be sonally if in 
examined without having been served with subpoena. Court at the 

515. Sec, VII. That plaintiffs may amend, at any time, and defendants *^^^1* 

shall have reasonable time to answer such amendment; but, makinsr an ,^^,^^^™t.^^ 
, 111 1 11 1^ may oe made, 

amendrijent shall not open the whole case to demurrer, unless the amendment Respondent 

makes a new bill : Provided hoioever^ plaintiffs shall not, capriciously, amend must have 

his pleadings, for the purpose of delay only. ^inie to An- 

516. Sec. VIII. That defendants shall only be required, when an amend- ^'^,^'"-,V ^^* 

, , , 1 . p 1 1 . , lor delay, 

raent is made, to answer such amendment; and it the amendment is merely Answer to 

formal, the answer may be waived, and the cause proceed. If the amendment formal amend- 

is one of substance, and not of form merely, the defendant shall have reason- naent may be 

able time to answer such amendment, as the court may order and direct. waived, it 

517. Sec. IX. That courts of justice, in construing this act, shall give it a required, time 
reasonable interpretation, to speed the trial of equity causes, allowing reason- given, 
able time for defendants, and discouraging any unnecessary delay ; and no How this Act 
right shall be defeated or prejudiced, on account of mere technicality of form, *^ ^^r^°°f^^^" 
not affecting the real justice and merits of the case. Courts ^ 

518. Sec X. That this act shall not extend to, or be applicable to any Application of 
case now penduig, or any case which may be filed and served before the first this Act. 
day of April next. 

Sec. XL [Repeals conflicting laws.] 

An Act for the appointment of Auditors, in certain cases. — Approved Dec. 
13, 1858. 

12 



178 JUDICIARY.— CERTIORARI AND INJUNCTION. 

Auditor may 519. That in all cases now pending on the equity side of the superior courts, 

be appointed or which may be hereafter brought, involving matters of account, and which 

m erm-time (>a^^|^Q|^ }yQ properly investigated by a jury, either party to such case may, upon 

application to the superior court, when in session, or to the presiding judge 

thereof, in vacation, have an auditor appointed by said court or judge, to 

He must Re- investigate the matters of account, ascertain how they stand and report the 

poit. result thereof, with a full and clear statement of the whole, to the court. Which 

report shall, under the direction of the court, be submitted as evidence to the 

Cost of Audi-jury, but not to be conclusive on either party. And the whole cost of pre- 

tor, how paid, paring said report, to be settled by the court, and paid for by the person 

applying for the report, unless the court, by its judgment, shall decide that 

other parties to the case, shall pay the whole or a part of the same ; the said 

court being hereby authorized to so decide, and to proportion the part to be 

paid, and to settle the whole of said expense, according to justice. 



CERTIORARI AND INJUNCTION. 

Certiorari how ^^^- ^^C- LIV. Where either party in any cause in any inferior court 
applied for shall take exceptions to any proceedings in any cause affecting the real 
and granted, merits of such cause, the party making the same shall offer such exceptions 
in writing, which shall be signed by himself or his attorney, and if the 
same shall be overruled by the court, it shall and may be lawful for such 
party, on giving twenty days' notice to the opposite party or his attorney, 
to apply to one of the judges of the superior court, and if such judge shall 
deem the said exceptions to be sufficient, he shall forthwith issue a Writ 
of Certiorari directed to the clerk of such inferior court, requiring him to 
certify and send up to the next superior court to be held in the said county, 
all the proceedings in the said cause. And at the term of the superior 
court to which such proceedings shall be certified, the said superior court 
shall determine thereon, and order the proceedings to be dismissed, or 
return the same to the said inferior court, with order to proceed in the 
said cause. 

Exceptions Presented to the Court. 

JOHN DOE I GEORGIA— ^(9 USTOJSr COUNTY. 

^«- > January Term, 1859. Assumpsit in the Inferior 

RICHARD ROE. j Court, and Verdict for the Plaintiff. 

And now comes the Defendant, by his Attorney, James A. Pringle, 
and Excepts to the proceedings in the above-stated cause, and for 
cause of Exception, says — first, Because the Court decided contrary 
to law, in this, to wit — [here set out fully and distinctly the Error com- 
plained of.'] 

James A. Pringle, Left's Atthj, 
Presented to and overruled by the Court. 

John D. Winn, J. I. C. 
William T. Swift, J. I. C. 
Wm. F. Postell, J. I. C. 

Note. — There is no other way of objecting to a Decision of the Inferior Court, and 
having it reviewed, but by Certiorari, founded on Exceptions. From a Verdict an appeal 
is allowed, but not from a Decision of the Court. 



JUDICIARY.— CERTIORARI AND INJUNCTION. 179 

Notice to the Opposite Party, 

JOHN DOE ^, Assumpsit in Houston Inferior Court. To the Defend- 
^^- > ant in the Case. 

BICHARD ROE. ^ You are hereby notified that I shall apply to the 
honorable Henry 0. Lamar ^ Judge of the Superior Courts of the 
Macon Circuit, within the time prescribed by law, for a Writ of Cer- 
tiorari^ in the above case. This January 8, 1859. 

James A. Pringle, Defies Aiiy. 

An Act to regulate the granting Certioraries and Injunctions in this State. 
— Approved Dec. 16, 1811. 

521. Sec. I. From and after the passing of this act, it shall not be Bond and Se- 
lawful for any judge of the superior court of this State, to sanction or curity must 
grant any certiorari unless the person or persons aggrieved and applying ^y^\ ^^ 
for the same, shall have previously paid all cost which may have accrued f^j. Certim-ari. 
on the trial below, and have given to the magistrate or magistrates, or 

justices of the inferior court, or clerk of the inferior court, as the case may 
happen, good and sufficient security for the eventual condemnation money, 
or any future costs which may accrue. 

522. Sec II. The person applying for said certiorari shall produce to Certificate of 
the iudo-e authorized to p-rant the same, a certificate from the mao-istrate *^^ payment 
or magistrates, or justices of the inferior court who tried the case, or clerk 

of the inferior court, whose duty it shall be to give said certificate, in- 
forming said judge that the costs have been paid, and security given, in 
terms of this act. 

523. Sec. III. No injunction shall be sanctioned or granted by any Bond and Se- 
iudg^e of the superior courts of this State, until the party requirino^ the curity re- 
same shall have previously given to the party against whom such injunc-g^ppu^j^^j^^f^j, 
tion is to operate, by application to the clerk of the superior court for that injunction, 
purpose, a bond with good and ample security for the eventual condenma- 

tion money, together with all future costs. Which said bond shall be 
lodged in said clerk's office, subject to the order of the court, and have 
paid all costs which may have accrued in the case, the subject of the in- 
junction. 

524. Sec. IV. Where any doubt arises as to the sufficiency of the Surety may 
security tendered to any of the persons, authorized by this act to take the ^^ compelled 
same, the party so authorized to take the said security, may compel the t^ Justify, 
party to justify upon oath, and such justification upon oath shall amount 

to such sufficiency as to exonerate the party taking the security, from any 
liability. 

525. Sec. V. No judge of the superior court shall grant or sanction No Judge may 
any certiorari [see 532] or injunction out of his judicial district, unless there ^J^^^ Y^fh^ 
shall be a vacancy in any of the other districts, or the judge thereof be so j5^JJj.j^^ ^^j^j^gg 
indisposed, or be absent therefrom, so that the business of granting certi- in certain 
oraries and injunctions cannot be speedily done. cases. 

526. Sec YI. In all cases of bills of injunction, where the defendant How Service 
or defendants reside out of the State, a service on the attorney of the °^ ^^^^ ^^y 
plaintiff" in the original action, and a publication of a six months' rule, ob- nou™e^iden° 
tained from the judge granting the injunction, shall be deemed a sufficient Defendant, 
service. 

527. Sec VII. All bills of injunction granted by the superior court, or Injunction 
any of them ; or which may hereafter be granted, shall stand and be con- ? *° ^® ^V 
sidered as open for argument and amendment, at the first term of the ed and dis- 
posed of. 



180 JUDICIARY.— CERTIORAEI AND INJUNCTION. 

superior court which may be holden after the passing of this act, in and 
for the county where the suit originated, or the first term after the grant- 
ing such bill of injunction. And in all cases of injunction, they shall be 
disposed of and a decision made, at the second term of said court, held in 
and for the county where such suit originated. Any law to the contrary 
notwithstanding. 
Second In- 528. Sec. VIII. The dilatory practice of granting bills of injunction a 
junction not second time, after the dissolution of the first bill or bills, shall not be ad- 
to he granted, jj^issible or allowed of in any case or cases whatever. — [See next Act.] 

An Act to repeal so much of the fifth section of an act passed on the 16th 
Dec. 1811, entitled "an act to regulate the granting of Certioraries smd In- 
junctions in this State," so far as relates to Certioraries. — Approved Dec. 
2t, 1821. 

'Whereas, much inconvenience has resulted in practice, and frequently great 

injustice has been done to parties litigant in the several Justices' Courts of this 

State, from the provisions of the said 5th section \of the ahove-descrihed act y'] 

for remedy whereof — 

5th sec. act 529. JBe it enacted., That so much of the 5th section of an act passed on 

of 1811 re- the 16th day of December, in the year 1811, as relates to certioraries^ be and 

pealed. ^j^^ same is hereby repealed. 

An Act to amend an act to regulate the granting of Certioraries and In- 
junctions in this State, passed Dec. 16, 1811. — Approved Dec. 27, 1842. 
Judge may 530. Sec. I. Be it enacted., That from and after the passing of this act, 
;grant Injimc- ^.^g third section of the above-recited act, be so altered and amended as to 
diTc^^tion^ authorize the judges of the superior courts of this State, to grant injunctions 
upon such security and under such terms as in their discretion such case may 
require. 
Second In- 531. Sec. II. It shall be lawful for a second injunction to be granted in 
junction may certain cases, where a previous injunction may have been dismissed for cause 
e gran e . ^^^ connected with the merits of the case. And when the judge to whom the 
application may be made, shall be satisfied that a second injunction should 
issue. 

Sec III. All laws and parts of laws militating against this act, be and the 
same are hereby repealed. 

An Act to amend the several laws of this State in relation to Writs of Cer- 
tiorari. — Approved Feb. 21, 1850. 
'How the Writ 532. Sec. I. Be it e^iacted., That from and after the passage of this act, 
■of Certiorari isjn all cases in any of the justices' courts of this State, when either of the parties 
to be had. ^\ir^\\ be dissatisfied with the judgment of said court, it shall be lawful as here- 
tofore for said party so dissatisfied, to apply for and obtain a certiorari on 
Petition how complying with the requisitions heretofore prescribed by law: Provided al- 
to be directed, ways., that the petition for certiorari shall not be to the judge of the superior 
€lerk to issue court, but to the superior court. And on being filed in the office of the 
the Writ, clerk of the superior court, it shall be his duty to issue the writ, directed to 
the justices of the peace of the district where the decision complained of was 
made ; directing them to certify and send up the proceedings in the case to 
When return- the next superior court. And in case the next superior court shall sit within 
able. twenty days after the issuing of said writ, then the said writ shall be return- 
Sheriff must able to the next succeeding court, which said writ shall be served on one of 
serve Writ, the said justices (by the party applying for the certiorari,) by the sheriff, 
deputy or any constable, at least fifteen days previous to the court to which 
Clerk must ^j^^ return is to be made. And it shall be the duty of the clerk of the superior 



JUDICIARY.— CERTIOEARI AND INJUNCTION. 181 

court to place the case on the certiorari docket, which said docket the judge of 
the superior court shall take up and dispose of in its order, under such rules, 
regulations and restrictions as are now prescribed by law for disposing of cer- 
tiorari cases. 

533. Sec. II. That the writs of certiorari granted in each case, under the Supersedeas, 
provisions of the above section, shall operate as a supersedeas of the judgment 

in the justices' court until the final hearing in the superior court. 

534. Sec. III. In all cases when the error committed by said justices' judee may 
court, is an error in law, which must finally govern the case ; and in all other make final de- 
cases when the judge of the superior court shall be satisfied there is no question cision in the 
of fact involved which makes it necessary to send the case back for a new ^^^® when the 
hearing in the justices' court, then it shall be the duty of said judge to make a (Ji^e^^oMaw. 
final decision on said case without sending it back to the justices' court, with 
instructions as heretofore. 

Sec. IV, All laws and parts of laws militating against this act, be and the 
same are hereby repealed. 

Petition for Certiorari. 

STATE OF GEORGIA, ) To the Superior Court of said County. 

Houston County. ^ rpj^^ Petition of Richard Roe, showeth that 
heretofore, to wit, at the January Term, 1859, of the Justices' Court, 
in and for the 619th District, G-. M. {James Mack and Charles Smith, 
Justices of the Peace, presiding,) there came on to be tried, in said 
Court, then and there, a cause which had been by John Doe, previous- 
ly commenced against your Petitioner, on an Open Account, for the 
sum of forty dollars. And your Petitioner avers, that at the said Term 
of said Court, a Judgment was rendered, on said Account against your 
Petitioner, for the full amount of said Account. And your Petitioner 
avers, [/ze?^e set out fully and at large the cause of dissatisfaction, ivhether 
it relates to law or fact.'] Therefore, to the end that justice may be 
done in the premises, your Petitioner prays the issuing of the State's 
Writ of Certiorari, directed to the presiding Justices of said Court, re- 
quiring them to certify and send up to the next Superior Court, to be 
held in and for said County, all the proceedings in the cause aforesaid. 
And may it please the Court to grant to Petitioner, such relief in the 
premises as may be agreeable to law and justice. And your Petition- 
er will ever pray, &c. 

Clinton S. Duncan, Pefr^s Atfy. 

I, Richard Roe, do solemnly swear, that the foregoing Petition for 
Certiorari, is not filed in this case, for the purposes of delay only. 
And I verily believe, I have a good cause for Certiorari. 

Sworn to and subscribed, ^ 
before me, this March 1, 1859. > ElCHARD ROE. 

James Johnson, J. P. i 

Note. — The AflQdavit is an essential part of the application, and therefore, it is unne- 
cessary, in the Affidavit, to re-state the place where it is made. 

Bond of the Applicant for Certiorari. 

STATE OF GEORGIA, ) We, Richard Roe as principal, and John Cofield 
Houston County. j as security, both of the County and State afore- 
said, acknowledge ourselves held and bound unto John Doe, and his 



182 JUDICIARY.— CERTIORAEI AND INJUNCTION. 

assigns, in the sum of eighty dollars ; subject to the following condi- 
tion — 

The condition of the above obligation is as follows — whereas, said 
John Doe^ heretofore, instituted his action on an Open Account for 
forty dollars, in the Justices' Court of the 619th District, G. M. against 
said Richard Roe ; on which action said Court of said District, render- 
ed Judgment in favor of the Plaintiff", for the sum of /or^?/ dollars ; 
with which Judgment of said Court, said Richard Roe is dissatisfied, 
and is about to move the issuing of the Writ of Certiorari. Now, 
should said Richard Roe^ well and truly, pay the said John Doe, the 
eventual condemnation money and all future costs, then the above 
obligation to be void ; otherwise, of force. This February 6, 1859. 
Approved, — Kichard Koe, prinH. [L. S.] 

James Johnson^ J. P. John Cofield, secHy. [L. S.] 

Certificate of the payment of Cost, 

STATE OF GEOEGIA, | J^ James Mac\ one of the Justices of the Peace, 
Houdon County. j" \^ and for the 619th District, G. M. hereby certify, 
that Richard Roe, (Defendant in an action, in said Court, instituted by 
John Doe against said Richard Roe, on an Open Account, for the sum of 
forty dollars, and on which Account.?i Judgment was rendered in favor 
of the Plaintiff,) has paid the Costs in said case, and given Bond and 
security, according to^law, in cases of application for Certiorari. This 
February 6, 1859. 

James Mack, J. P. 

Note. — The Act of Dec. 27, 1842, (see Justices' Court,) provides, (incases of Certiorari,) 
that "if such party," (dissatisfied with the proceedings of the Court,) " will make an 
AflBdavit, in writing, that he or slie is advised and believes, that he or she has good 
cause for " certioraring''' the same to the Superior Court, and that owing to his or her pov- 
erty, he or she is unable to pay the cost and give security, as required by law, such affi- 
davit shall, in every respect, answer instead of the certificate of the presiding Justice, 
that the cost has been paid and security given, as now required by law." 

Writ of Certiorari. 
CLERK'S OFFICE, Superior Court, February 6, 1859. 

STATE OF GEORGIA, \ To the Justices of the Peace in and for the 619^A 

Houston -Gonniy. ] District, Georgia Militia. 

Whereas, Richard Roe alleges by his Petition for Certiorari, that at 
the January Term of your Court, eighteen hundred and fifty-nine, 
Judgment was rendered against him, in favor o^ John Doe, on an Open 
Account, for the sum o^ forty dollars, with which Judgment, Petitioner 
is dissatisfied. And whereas, said Richard Roe has complied with the 
requirements of the law, in cases of application for Certiorari ; now, 
therefore, you are hereby notified and required to certify and send up 
to the Superior Court, to be held in and for said County, on ih^ fourth 
Monday in April next, under your hands and seals, all the facts and 
proceedings in the case, in your Court, aforesaid. 

Witness, the honorable Henry 0. Lamar, Judge of said Court. 

William H. Miller, Clerk. 



JUDICIARY.— CERTIORARI AND INJUNCTION. 183 

Return of the Justices of the Peace. 

STATE OF GEORGIA, ) To the Superior Court of said County. -, 

Houston County. |" In Answer to the Writ of Certiorari, to us 
directed, dated February 6, 1859, the undersigned submit, that the 
following is a full, direct and complete Answer; containing all the 
facts and proceedings, in the case of John Doe against Richard Roe, 
action on an Open Account pending in said Court ; upon which Ac- 
count Judgment was rendered for the Plaintiff against the Defendant, 
for the sum o^ forty dollars. 

[Here set out fully and distinctly all the facts and circumstances connected 
with the case, so as to meet the requirements of the Petition for Certiorari, 
fully.] 

All of which is respectfully submitted. 

Given under our hands and private seals, there being no seal of Office, 
this February 8, 1859. 

James Mack, J. P. [L. S,] 
John Jones, J. P. [L. S.] 

Note. — The Answer of the Justices of the Peace must not be written out by either of 
the Parties or their Attorneys ; nor written out by either of them and transcribed by an- 
other person ; nor dictated by them, or either of them. 

An Act to amend the several laws of this State upon the subject of Writs 
of Certiorari. — Approved Dec. 22, 1857. 

535. Sec. I. JBe it enacted, That from and after the first day of Janu- No Certiorari 
ary next, no writ of certiorari shall be granted or issued to any Justices' to be granted 
Court in this State, unless the party applying for the same, his agent or "^^^^^^ it be 
attorney, shall make and file with his petition the following affidavit, to ^"Affidavit. ^ 
wit : — 

Georgia, County. 

I, A B, do solemnly swear, that the Petition for Certiorari, is not filed, 
in this case, for purposes of delay only ; and I verily believe I have good 
cause for Certiorari. 

Sworn to and subscribed, before me, this day of 18 . 

536. Sec. II. That it shall and may be lawful for the presiding judge I^amagee 
before whom any writ of certiorari, hereafter granted, may be heard, on fi-fvo^lous Cer- 
motion of the opposite party, to order, that not more than twenty per Uoraries. 
cent, damages, against the plaintiff in certiorari, in case it shall be made 

appear to him that the said certiorari was frivolous and applied for with- 
out good cause for the same, or for purposes of delay only ; and judgment 
may be entered accordingly. Any law, usage, or custom, to the contrary 
notwithstanding. 

Sec. III. That all laws and parts of laws against this act, be and the 
same are hereby repealed. 

At^ Act to alter and amend an act entitled an act supplementary to an act 
entitled " an act regulating the granting of Certioraries and Injunctions 
in this State," passed 29th Dec. 1838, so far as relates to the time allowed 
for applying for writs of Certiorari. — Approved Dec. 11, 1858. 
Whereas, much delay and inconvenience in the final disposition of causes 
in the Justices' Courts of this State, arise from the unreasonable time 
allowed for making application for Writs of Certiorari / for remedy where- 
of— 



184 



JUDICIARY.— MORTGAGE. 



tiorari. 



Three months '^37. Sec. I. J^e it enacted, That the provisions of said recited act, 
allowed to passed Dec. 29th, 1838, which allows six months within which to apply for 
apply for Cer- ^yrits of Certiorari, be so altered and amended as to require parties desir- 
ing such writ, to apply for the same within three months after the final 
determination of the case in the justices' court. 
Sec. 2. [Repeals conflicting laws.] 

Note. — All Writs of Certiorari, shall after having been docketed by the Clerk, be de- 
livered to the Magistrate whose proceedings are the subject of complaint. And written 
Notice shall be given to the opposite party in interest, at least ten days before the hear- 
ing of the cause, unless the Certiorari shall be applied for and sanctioned within twenty 
days after the Decision complained of. — \htli Com. Law Rule of Court. 



Notice, 
STATE OF GEORGIA, ^ John Doe— You are hereby notified that in the 
Houston County. ^ ^ase lately decided in the justices' Court of the 
619th District, Gr. M. in your favor ; in which case I was Defendant, I 
have applied for and have had issued, the Writ of Certiorari, return- 
able to the next Term of the Superior Court of said County, to be 
held on the fourth Monday in April next. This February 8, 1859. 

KiCHARD EOE, PVff in Cer. 



MORTGAGE ON REAL ESTATE. 

Method of 538. Sec. XYII. The method of foreclosing mortgages on real estate 
foreclosing jn this State, be as follows — Any person applying and entitled to fore- 
Mortgage on (jjQgg ^ixq\i mortgage, or his, her or their attorney, shall petition the supe- 
rior court of the county wherein such mortgaged property may be, stating 
the case and the amount of his, her or their demand, and describing such 
Eule ni. si. mortgaged property. And the court shall grant a rule, that the principal, 
interest and cost, shall be paid into court within twelve months \o7i or he- 
fore the first day of the next term — see 540] thereafter ; which rule shall be 
j)ublished in one of the public gazettes of this State, at least once in every 
month \o7ice a month for four months — see 539,] until the time appointed 
for payment, or served on the mortgager, or his \her or theii^ special 
agent, at least six \three months — see 539,] months previous to the time 
Eule absolute, the money is directed to be paid. And unless the principal, interest and 
costs be so paid, the court shall give judgment for the amount which may 
be due on such mortgage, and order the property mortgaged to be sold, 
Surplus to be in such manner as is prescribed in cases of execution. And the money 
paid to Mort- ghall be paid to the mortgagee or his attorney ; but where there shall be 
gager. ^^.^ surplus, the same shall be paid over to the mortgager or his agent. 
Dispute as to And in case of any dispute as to the amount due on anv mortoraore, if the 
mortgager shall appear within the time prescribed by this act, and make 
affidavit that he hath made payments which have not been credited on said 
mortgage ; or that he is entitled to sets-off which in equity ought to be 
allowed, the court shall appoint one or more fit person or persons, to audit 
and liquidate the same ; but either party shall be entitled to a new trial 
therefrom, which shall be tried in like manner as shall be prescribed for 
the trial of appeals in other cases. 



amount due. 



Appeal 
allowed. 



JUDICIARY .—MORTGAGE. 185 

Mortgage Deed of Real Property. 

STATE OF GEORGIA, | This Indenture made this first day oi May, in 
Houston Conniy. j the year of our Lord eighteen hundred Siud fifty- 
six, between Charles Smith, of the County and State aforesaid, of the 
one part, and Richard Roe, of the same place, of the other part, 
Witnesseth, that the said Charles Smith hath this day made and 
delivered to said Richard Roe, his certain Promissory Note, subscribed 
with his hand, and bearing even date with these presents, whereby 
the said Charles Smith hath promised to pay said Richard Roe, or 
bearer, one thousand dollars, on or before the twenty fifth day of Decern- 
her, next ensuing the date thereof, for value received. Now, for and 
in consideration of the sum of ten dollars, by the said Richard Roe to 
the said Charles Smith, in hand paid, at and before the sealing and 
delivery of these presents, the receipt whereof is hereby acknowl- 
edged, as well as for the better securing the payment of the aforesaid 
Promissory Note, the said Charles Smith hath granted, bargained and 
sold, and doth by these presents grant, bargain, and sell unto the 
said Richard Roe, his heirs and assigns, all that tract or parcel of land, 
situate, lying and being in the County aforesaid, known as lot number 
forty-nine, m the tenth district of said County; agreeably to original 
survey, containing two hundred two and a half acres, more or less ; 
with all the rights, members, and appurtenances to said lot of land in 
any wise appertaining or belonging. To have and to hold the said 
bargained premises to the said Richard Roe, his heirs and assigns, to 
his and their own proper use, benefit and behoof, forever. And the 
said Charles Smith, for himself, his heirs. Executors and Adminis- 
trators, the said bargained premises, unto the said Richard Roe^ 
will warrant and forever defend, against the claim of himself and 
heirs, and against the claim of all other person whatsoever. Pro- 
vided nevertheless, That if the said Charles Smith, his heirs, Execu- 
tors and Administrators, shall well and truly pay, or cause to be paid, 
unto the said Richard Roe, his heirs and assigns, the afore- mentioned 
sum of one thousand dollars, on the day and time mentioned and 
appointed for the payment thereof, in the said Promissory Note men- 
tioned, with lawful interest on the same, according to the tenor of 
said Note, then, and from thenceforth, as well this present Indenture 
and the right to the property thereby conveyed, as said Promissory 
Note, shall cease, determine and be void, to all intents and purposes. 

In witness whereof, the said Charles Smith hath hereunto set his 
hand and affixed his seal^ the day and year first above written. 
Signed, sealed and delivered, ~] 

'"^Xri.!, Charles Smith, [L. S.] 

James Mack, J. P. J 

Note for the Securing the Payment of which the Mortgage 

was Giv€?i. 

On or before the twenty-fifth day of Decemher next, I promise to pay 
Richard Roe, or bearer, one thousand dollars. For value received. 
This May 1, 1856. Chakles Smith. 



186 JUDICIARY.— MORTGAGE. 

Petitioti of Mortgagee. 

STATE OF GEORGIA, ) ^ c - n - r^ 

Houston Goxmty. \ ^^ ^^^ Superior Court of said County. 

The Petition of Richard Roe showeth, that heretofore, to wit, on 
the first day of May^ in the year of our Lord eighteen hundred and 
fifty-six^ Charles Smithy of said County, made and delivered to your 
Petitioner, his certain instrument in writing, called a Promissory Note^ 
whereby he promised, on or before the twenty-fifth day of Decen^her^ 
next following the date of said iVbfe, to pay your Petitioner, or bearer, 
one thousand dollars^ for value received. And for the better securing 
the payment of said Note^ on the day and year aforesaid, said Charles 
Smith executed and delivered to your Petitioner his certain Deed of 
Mortgage, conveying to your Petitioner lot of land numhQr forty -nine^ 
in the tenth district of said County, conditioned to be void upon the 
payment of the Promissory Note aforesaid ; (which Note and Deed of 
Mortgage are here in Court to be shown.) Yet, your Petitioner avers, 
that said Charles Smithy although so indebted, and to pay said Note 
often requested, hath not paid said Note^ or any part thereof, but the 
same to pay hath hitherto refused and yet refuses — wherefore, your 
Petitioner prays that such rule and order ma}^ be made and passed 
hj the Court, as will be in conformity to the statute in such case made 
and provided, etc. April Term, 1858. 

James A. Pringle, PVff's Atiy. 

Rule Nisi. 

GEORGIA— ^0 USTON COUNTY.— 77^ the Superior Court. 
Present^ the honorable Henry C Lamar.^ Judge of said Court 
RICHAED EOE ) 

vs. )■ Morto^asre, etc. — April Term, 1858. 

CHARLES SMITH, j 

It appearing to the Court by the Petition of Richard Roe, (ac- 
companied by the Note and Mortgage Deed,) that, on the first day 
of May, eighteen hundred and fifty-six, the defendant made and 
delivered to the Plaintiff, his Promissory Note, bearing date the day 
and year aforesaid, whereby the Defendant promised, on or before 
the twenty-fifth day of December, next following the date of said Note, 
to pay the Plaintiff, or bearer, one thousand dollars, for value received. 
And, that afterwards, on the day and year aforesaid, the Defendant, 
the better to secure the payment of said Note, executed and delivered 
to the Plaintiff his Deed of Mortgage, whereby the said Defendant 
Mortgaged to the Plaintiff lot of land number forty -nine, in the tenth 
district of said County, containing two hundred two and a half acres, 
more or less. And it further appearing that said Note remains unpaid, 
it is, therefore ordered, that the said Defendant do pay into Court, on 
or before the first day of the next term thereof, the principal, interest 
and costs due on said Note, or show cause to the contrary, if anj^ he 
can. And that on the failure of the Defendant so to do, the equity 
of redemption in and to said Mortgaged premises, be forever there- 
after barred and foreclosed. And it is further ordered, that this Rule 
be published in the Southern Recorder, once a month, for three months 



JUDICIARY.— MORTGAGE. 187 

previous to the next term of this Court, or served on the Defendant 
or his special Agent, or Attorney, at least three months previous to 
the next term of this Court. 

A true extract from the Minutes of this Court. 

William H. Miller, Cleric. 

Rule Absolute. 
GEORGIA, HOUSTON' QOJJl^l^Y .—In the Superior Court. 
Present., the honorable Henry G. Lamar, Judge of said Court. 
RICHARD ROE ) 

vs. J- Mortgaoje, etc. — October Term, 1858. 

CHARLES SMITH. ) 

Whereas, at the April Term of this Court, last past, a Rule Nisi, was 
granted in the above-stated case, requiring the Defendant to show cause 
why he should not pay into Court the principal, interest and costs, due 
on a certain Note given by the Defendant to the Plaintiff, on the first 
day of May^ eighteen hundred and fifty-six^ and to fall due on the 
twenty fifth day of December next ensuing, for the sum of one thousand 
dollars. For the better securing the payment of which Note^ said De- 
fendant had executed on the same day and year aforesaid, to the 
Plaintiff, his Deed of Mortgage to the Plaintiff for lot of land number 
forty-nine., in the tenth district of said County, containing two hundred 
two and a half acres, more or less. And it appearing that a copy of 
said Rule Nisi, has been served on the Defendant personally., and that 
said Defendant still neglects and refuses to pay the amount due on 
said Note, or to show cause to the contrary : therefore, it is ordered, 
considered and adjudged, that the equity of redemption in and to said 
Mortgaged premises be and the same is hereby barred and forever fore- 
closed. And it is further ordered, that the Plaintiff do recover of and 
from the Defendant, the sum of one thousand dollars for his principal 
debt, the sum oi seventy-five dollars for his interest up to this date (with 
all accruing interest), and the sum oi fifteen dollars for his costs in this 
behalf laid out and expended, and that Execution issue against the 
Mortgaged premises for the sums aforesaid. And the Defendant in 
mercy, etc. Judgment signed 25th October^ 1858. 

James A. Pringle, PVff^s Atfy. 

f Mortgage Ft. Fa. 

^'^^™.to;f c^untT^"^' \ ^o «^^ «^^ singular the Sheriffs of said State. 

We command you, that of lot of land numher forty-nine in the tenth 
district of said County, the property of Charles Smith, described and 
conveyed in a certain Indenture of Mortgage, bearing date on the^ir^^ 
day of May, eighteen hundred and fifty-six, you cause to be made the 
sum oi one thousand dollars principal, seventy-five dollars interest up to 
the twenty-fifth instant (with all accruing interest), and fifteen dollars 
costs, which Bichard Boe lately in our Superior Court, at Perry, in the 
County aforesaid, recovered against said Charles Smith, as well for 
damages by reason of the non-performance of certain promises by the 
said Charles Smith before that time made, as lor costs and charges in 



188 JUDICIARY.— MORTGAGE. 

his suit, in that behalf expended, whereof said Charles Smith is con- 
victed and liable, as appears to us of record. And have the said sums 
of money before the said Court, at Perry aforesaid, on the fourth Mon- 
day in April next, to render to the said Richard Roe^ his damages, 
costs and charges aforesaid. And have you then and there this Writ. 
Witness, the honorable Henry G. JLamar^ Judge of said Com% this 
October 30, 1858. 

William H. Miller, Glerh, 

Sheriff^ s Sale of Mortgaged Property, 

On the first Tuesday in January next, will be sold at the court-house 
door, in the town o^ Perry ^ Houston County, between the lawful hours of 
sale and to the highest and best bidder, lot of land nnmher forty-nine in 
the tenth district of said County, containing two hundred two and a half 
acres, more or less, the same being well improved. Levied on as the 
property of Charles Sviith, by virtue of a Mortgage fi. fa. issued from 
the Superior Court of said County in favor of Richard Roe. This' 
November 1, 1858. 

Madison Marshall, Sheriff. 

Affidavit of the Defendant. 

STATE OF GEORGIA, ) In person appeared before the undersigned, 
Houston Qonxxij. \ Charles Smith, who after being sworn saith, that 
on the first day of May, eighteen hundred and fifty-seven, he paid the 
sum of three hundred dollars, on a Note and Mortgage, given to Richard 
Roe, for one thousand dollars, dated the first day of May, eighteen hun- 
dred and fifty-six, and to become due the 25th day of December there- 
after. (For the better securing the payment of which Note, deponent 
executed to the said Richard Roe, his Deed of Mortgage, of even date 
with said Note, conveying conditionally, to said Richard Roe, lot of 
Land number forty-nine, in the tenth district of said County.) Which 
payment has not been credited thereon. 

Sworn to and subscribed. ) 
before me, this June 1, 1857. \ ClIARLES SmITH. 

James Mack, J. P. j 

Nr Act to amend an act entitled " an act to amend the Judiciary of 1799, 

so far as relates to Mortgages on Real Estate." — [The ac^ of which this 

is amendatory is omitted as being superseded.] — Approved Dec. 21, 

1829. 

Mortgage on 539. From and after the passage of this act, when any person or per- 

Real Estate sons, his, her or their agent or attorney shall petition the superior court, 

foreclosed^ as prescribed by the Judiciary of 1799, for the foreclosure of any Mort- 

Rule to be g^g^ on real estate, the court shall grant a rule directing that the principal 

granted and and cost shall be paid into court within six months thereafter ; \see 540 ;] 

served. which rule shall be published in one of the public gazettes of this State, 

once a month for four months, or served on the mortgager or his, her or 

their special agent or attorney, at least three months previous to the time 

the money is directed to be paid : Provided, that nothing in this act shall 

be so construed as to affect any mortgage which may exist at the time of 

the passage of this act. 



JUDICIARY.— MORTGAGE. * 189 

Sec. II. So much of the said Judiciary of 1799, (and of the said 
amendatory act,) as militates against this, is hereby repealed. 

An Act to alter and amend the several acts regulating the foreclosures of 
Mortgages upon Real Estate. — Approved Dec. 26, 1836. 

540. From and after the passage of this act, in all cases where any ap- jiule to be 
plication shall be made to any superior court of this State for the foreclo- made absolute 
sure of any Mortgage upon real estate, it shall be the duty of such court ^* *^^ °^^^ 
to pass an order, requiring the mortgager to pay the principal and interest t^rm. 
due upon such mortgage, into court, on or before the first day of the next 

term, which order shall be served or published, in the manner now required 
by law. And if such order be not complied with by the mortgager, the 
court may at such term, pass a rule absolute for the sale of the mortgaged 
property. 

MORTGAGES OF PERSO]S"AL PROPEETT. 

541. Sec. XVIII. Mortgages of personal property shall be foreclosed Mortgage on 
in the following manner — Any person or persons holding a mortgage on personal Prop- 
personal property, \or his agent or attorney-in-fact^ or at law — see 542,] ^closed ^etc. 
and wishing to foreclose the same, shall make application to one of the 

judges of the superior or justices of the inferior courts, and make affidavit 
before him of the amount of principal and interest due on such mortgage. 
Which affidavit shall be annexed to such mortgage, and thereupon the 
clerk of the superior or inferior courts shall issue execution as on a judg- 
ment. Which execution being delivered to the sheriff, it shall be his 
duty to levy on the property wheresoever the same may be found. And 
after advertising the same in one or more of the public gazettes of this 
State, at least sixty days, the sheriff shall set up and expose the same to 
sale ; and the money arising from such sale shall be first applied to dis- 
charge the amount due on such mortgage, and all legal costs ; and the 
overplus, if any, to be paid to the mortgager : Provided always^ that if 
any dispute shall happen as to the sum due on any mortgage, that it shall 
and may be lawful for the said judge or justices of the inferior courts, on 
affidavit, to order such sale to be postponed, the mortgager giving bond, with 
good and sufficient security, in double the sum sworn to be due, for re- 
turning such property when called for by the sheriff. Which bond shall 
be assignable by the sheriff to the mortgagee, who may sue and recover 
thereon. But the jury shall be sworn to give at least twenty-five per 
cent, damages, in case it shall appear that such application was intended 
for delay only. 

Mo7'tgage of Personal Propertij. 

STATE OF GEORGIA, | Know all men by these presents, that I, John 
Houston County. j J)oe^ of the County and State aforesaid, for and in 

consideration of the sum of ten dollars cash in hand paid, at and before 
the sealing and delivery of these presents, the receipt whereof is here- 
by acknowledged, as well as for the better securing the payment of a 
certain Promissory Note^ which I have this day made and delivered to 
Richard Roe, of the same place, bearing even date with these presents, 
and to become due on the twenty-fifth day o^ December next, whereby I 
promise to pay said Richard Roe or hesirei five hundred dollars, for value 
received, have bargained and sold to said Richard Roe, the following 
property, to wit: acevt^Lin Negro man named Jacob j of yellow complexion^ 



190 JUDICIARY.— MORTGAGE. 

twenty years ofage^ five feet ten inches high, sound and well. To have and 
to hold the said bargained property, to him the said Bichard Roe^ his 
heirs and assigns for ever, {the said John Doe retaining possession of said 
Negro man,) And I, the said John Doe, for myself, my heirs, Execu- 
tors and Administrators, the said bargained property unto the said 
Richard Roe, his heirs and assigns, against myself, my heirs. Execu- 
tors and Administrators, and against all and every other person and 
persons whomsoever, shall and will warrant and defend by these pres- 
ents. Provided nevertheless, that if the said John Doe, his heirs, Execu- 
tors or Administrators, shall and do, well and truly pay, or cause to 
be paid, unto the said Richard Roe, his heirs or assigns, the afore-men- 
tioned sum oifive hundred dollars^ on the day mentioned and appointed 
for the payment thereof in said Note, with lawful interest on the same, 
according to the tenor and effect of said Note, then and from thence- 
forth, as well this Bill of Sale, and the right to the property therein 
conveyed, as the said Promissory Note, shall cease, determine and be 
void, to all intents and purposes. 

In testimony whereof, the said John Doe hath hereunto set his hand 
and affixed his seal, this May 1, 1857. 

Signed, sealed and delivered, "j 

'"SX,t John Doe. [L. S.] 

James Mack, J. P. J 

Affidavit of Foreclosure annexed to Mortgage, 

STATE OF GEORGIA, i In person appeared before the undersigned, 
Houston County. ^ Richard Roe, the Mortgagee, who being duly sworn 
saith, that John Doe, the Mortgager, is justly indebted to him, de- 
ponent, on this Mortgage, the sum of five hundred dollars for his prin- 
cipal debt ; the sum of thirty dollars for his interest, and that said 
sums are now due and unpaid. 

Sworn to and subscribed, \ 

before me, this JanMffT-?/ 1, 1858. > RiCHARD ROE. 

John D. Winn, J. 1. C. ) 

Fiat of the Justice of the Inferior Court, 

At Chambers, January 1, 1858. 

STATE OF GEORGIA, ) m ? ^i t r -, -r r • ^ r -1 ry 

Houston County. ( -^^ ^^^^ Clerk of the Inferior Court of said County. 

Let an execution of fieri facias be issued, to be levied of the pro- 
perty described in the within {or above) Mortgage, five hundred dollars 
principal debt, thirty dollars interest, (and all accruing interest,) and 
five dollars costs. Herein fail not. 

Witness my hand and official Signature. 

John D. Winn, J. I. C. 

Mortgage. Fi. Fa. 

STATE OF GEORGIA, i rr n r, ■ 7 w r., .^ . • 7 r., , 
Houston CountY [ -to alt and singular trie bnenffs oj said otate. 



We command you, that of a certain Negro man named Jacob, of yel- 
lovj complexion, twenty years of age, five feet ten inches high, the property 



JUDICIARY.— MORTGAGE. 191 

o^ John Doe of said County, you cause to be made the sum of five hun- 
dred dollars principal, thirty dollars interest up to this date (and all 
accruing interest,) ?iX\Afive dollars costs. Which sums BichardRoe lately 
recovered against said John Doe^ before the honorable John D. Winn, one 
of the Justices of the Inferior Court of said County, on the foreclosure 
of a Mortgage given by said John Doe to said Richard Roe^ on said Negro 
man Jacob, by reason of the non-performance of certain promises by the 
said John Doe heretofore made, whereof the said John Doe is convicted 
and liable as appears to us from said Mortgage, the sam.e bearing date 
the j^rs^ day of May, eighteen hundred SLud fifty-seven. And have the 
said sums of money before the Inferior Court to be held at Perry, in 
and for said County, on the fourth Monday in July next, to render to 
said Richard Roe his damages, costs and charges aforesaid. And have 
you then and there this Writ. 

Witness, the honorable John D. Winn, one of the Justices of said Court^ 
this January 2, 1858. 

John H. King, Clerh. 

Defendant'' s Affidavit. 

STATE OF GEOKGIA, ) Personally a})peared before the undersigned^ 
Houston County. j" John Doe, who being sworn, deposeth and saith, 
that a Mortgage fieri facias lately issued by the Clerk of the Inferior 
Court of said County, against a certain Negro man named Jacob, the 
property of deponent, (which j^. /a. has been levied on said Negro man,) 
in favor of Richard Roe, for the sum oi five hundred dollars^ besides in- 
terest and cost, is proceeding illegally against deponent, for that de= 
ponent testifying says, that there is but the sum of three hundred dol- 
lars due on said Mortgage, deponent having paid two hundred dollars 
on said Mortgage. 

Sworn to and subscribed, ) 
before me, this Jawwari/ 2, 1858. >• JOHN DOE. 

James Mach, J. F. ) 

Order by the Justice of the Inferior Court, 

STATE OF GEORGIA,) ^ „ . . , i i -.r- , -■, a 
Houston County ( J-O all and Singular the sheriffs of said jState. 

Whereas, on the first day of January, eighteen hundred and fifty- 
eight, Richard Roe appeared before the undersigned and made oath, 
that a Mortgage then had and held by him deponent, against John Doe 
(upon a certain Negro man named Jocob,) for the sum of five hundred dol- 
lars^ besides interest and cost, was then due and unpaid. And whereas, 
an order was thereupon issued, directed to the Clerk of the Inferior 
Court, authorizing and commanding him to issue a writ of fieri facias 
against the Mortgaged property, for the sum sworn to be due ; (which 
fi.fa. has been levied on the Mortgaged property.) And whereas, said 
John Doe, hath appeared before James Mach, a Justice of the Peace^ 
and made oath that there is but the sum of three hundred dollars due on 
said Mortgage (and has given the bond required by law :) you are 
therefore, hereby commanded and required to postpone the sale of said 
Negro man Jacob, until further order in that behalf made, and return 



192 JUDICIARY.— MORTGAGE. 

saidyZ./a. to the next Inferior Court to be held in and for said County, 
on l\\Q fourth Monday in July next. 

Witness my hand and official signature^ at Chambers^ this January 
2, 1858. 

John D. Winn, J. I. C. 

Bond given by the Defendant. 

STATE OF GEORGIA, ) We, John Doe as principal, and Charles Smith 
Houston County. i g^g security, acknowledge ourselves held and 
bound to Madison Marshall^ Sheriff of said County, the sum of one thou- 
sand dollars^ subject to the following condition — 

The condition of the above obligation is this : Whereas, said Sheriff, has 
levied a Mortgage fi. fa. in favor of Richard Roe against John Doe^ is- 
sued by John H. King^ Clerk of the Inferior Court, upon a certain 
Negro man named Jacob^ the property mentioned in said Mortgage. 
And whereas, said John Doe^ has filed his af&davit, denying that the 
amount for which saidyt./a. issued, is due. And whereas, an order 
has been issued by the honorable John D. Winn^ one of the Justices 
of the Inferior Court of said County, postponing the sale of said Mort- 
gaged property : now, should said John Doe well and truly return said 
Negro man Jacob when called for by said Sheriff, then the above obliga- 
tion to be void ; otherwise of force This January 2, 1858. 
Approved — John Doe, principal. [L. S.] 
James Mach^ J. P. Charles Smith, security. [L. S.] 

Relinquishment where the debt is paid without Suit. 

STATE OE GEORGIA, ) I, the within named Richard Roe^ (or I, Richard 
Houston County. J Roe^ Mortgagee, described in a certain Mortgage 
executed by John Doe^ bearing date the first day of J/ay, eighteen 
hundred d,ndi fifty-seven^) do hereby acknowledge full satisfaction of the 
debt, to secure the payment of which said Mortgage was executed. In 
consideration of which, I hereby relinquish all right and title to the 
property in said Mortgage conveyed. 

In testimony whereof I have hereunto set my hand and affixed my 
seal, this January 2, 1858. 
Signed, sealed and delivered, "j 

" SriLt KiCHARD EOE, Mortgagee. [L. S.] 

James Mack, J. P. j 

An Act to amend the eighteenth section of the act passed on the sixteenth of 
February, 1799, entitled " an act to revise and amend the Judiciary Sys- 
tem of this State." — Approved Dec. 21, 1839. 
Agent or At- 542. Sec. 1. Re it enacted., That from and after the passage of this act, 
torney may mortgages upon personal property may be foreclosed upon the affidavit of the 
oieclose. agent, or attorney-in-fact, or at law, of the person or persons holding such 
mortgage, as to the amount due. 
M'tg'ge where ^48. Sec. II. All such mortgages shall be foreclosed and execution issue, 
foreclosed, in the county where the mortgagers reside at the time of the execution of the 
same, if residents of this State. 

Note. — There are several very important provisions, hearing an intimate connection 






JUDICIARY.— HABEAS CORPUS. 193 

with this subject, particularly "An act to compel the purchasers of Mortgaged Property; 
purchasers of Life-Estates, or Estates-for-term-of-years ia PersonalProperty, at Sheriffs', 
Coroners' or Constables' sales to give Bond," for which the reader is referred to the title 
Sheriff and Deputy. 



HABEAS CORPUS. 

544. Sec. VK. The judges of the superior courts, or any one of them, and By whom the 
the justices of the inferior courts, or any of them, in the absence of the judges Writ oi Hale- 
of the superior courts, shall have power to issue vfYits, oi habeas corpus '^ and "1 ^^^"*.™f ^ 
in all cases, to discharge, admit to bail, or remand to jail, any prisoner, accord- 

ing to their discretion and the law of the land : Provided that in all cases of a 
capital nature, where a writ o^ habeas corpus shall be issued by a justice of 
the inferior court, it shall be necessary that one or more of the justices of 
such inferior court, shall associate with the justice granting the same, at the 
return thereof; and a majority of such justices shall concur in opinion, on any 
decision or order aforesaid. And it shall be the duty of such justices to 
attend, on one day's notice being given of the time and place of the return of 
such writ. — [And see 565.] 

An Act for the better securing the liberty of the Subject, and for prevention 

of Imprisonment beyond the seas. — Approved A. J). 1678. 

Whereas, great delays have been used by Sheriffs, Jailers, and other Offi- 
cers, to M'hose custody any of the King's subjects have been committed for 
criminal or supposed criminal matters, in making returns of writs of habeas 
corpus to them directed, by standing out an alias and pluries habeas corpus 
and sometimes more ; and by other shifts to avoid their yielding obedience 
to such writs, contrary to their duty and the known laws of the land ; whereby 
many of the King's subjects have been, and hereafter may be, long detained 
in prison ; in such cases where by law they are bailable, to their great charges 
and vexation. — 

545. II. For the prevention whereof, and the more speedy relief of all persons The Writ must 
imprisoned for any such criminal or supposed criminal matters: 13 e it enacted \^ returned 
That whensoever any person or persons shall bring habeas corpus^ directed ^^:?^?, ^^J^ 
unto any sheriff or sheriffs, jailer, minister, or other person whatsoever, for Qf ^jjg p^pg^jf 
any person in his or their custody, and the said writ shall be served upon the if within 20 
said officer, or left at the jail or prison, with any of the under-officers, under- miles, etc. 
keepers, or deputy of the said officers or keepers, that the said officer or officers, 

his or their under-officer, under-keepers or deputies, shall within three days 
after the service thereof, as aforesaid, (unless the commitment aforesaid, were 
for treason or felony, plainly and specially expressed in the warrant of com- 
mitment,) upon payment or tender of the charges of bringing the said prisoner Prisoner must 
to be ascertained by the judge or court that awarded the same, and endorsed pay charges 
upon the said writ, not exceeding twelve pence per mile, and upon security 
given ('by his own bond to pay the charges of carrying back the prisoner, if he 
shall be remanded by the court or judge to which he shall be brought, accord- 
ing to the true intent of this present act, and that he will not make any escape 
by the way) make return of such writ, and bring or cause to be brought, the 
body of the party so committed or restrained, unto or before the lord-chan- 
cellor, or lord-keeper of the great seal of England, for the time-being ; or the 
judges or barons of the said court from whence the said writ shall issue ; or 
unto and before such other person or persons before whom the said writ is 
13 



194 JUDICIARY.— HABEAS CORPUS. 

Officer must made returnable, according to the command thereof. And shall then likewise 

certif)'- cause certify the true causes of his detainer or imprisonment, unless the commitment 

of Imprison- Qfi\^Q sai(3 party be in any place beyond the distance of twenty miles from the 

' place or places where such court or person is or shall be residing. And if beyond 

the distance of twenty miles, and not above one hundred miles, then within 

the space often days ; and if beyond the distance of one hundred miles, then 

within the space of twenty days after such delivery aforesaid, and not longer. 

Writs how to ^46. Ill, And to the intent that no sheriff, jailer or other officer may 
be marked, pretend ignorance of the import of any such writ: JBe it enacted, That all 
such writs shall be marked in this manner, J^er statutem tricessimo, pimo^ 
Coroli secundi regis^ and shall be signed by the person that awards the same. 
Writs in vaca- And if any person or persons shall be or stand committed or detained as 
tion. aforesaid, for any crime, unless for felony or treason, plainly expressed' in the 

warrant of commitment, in the vacation-time and out of term, it shall and 
may be lawful to and for the person or persons so committed or detained, 
(other than persons convicted or in execution, by legal process,^ or any one on 
his or their behalf, to appeal or complain to the lord-chancellor or lord-keeper, 
or any of his majesty's justices, either of the one bench or the other, or the 
Copy of War- barons of the exchequer of the degree of the coif. And the said lord-chancel- 
rant of Com- lor, lord-keeper, justices, or barons, or any of them, upon view of the copy or 
™accomD'^v^ 1^'^^ ^^ ^^® warrant or warrants of commitment and detainer, or otherwise, 
the appHca- "P^n oath made, that such copy or copies were denied to be given by such 
tion, or affida- person or persons in whose custody the prisoner or prisoners is or are detained, 
vitbe made are hereby authorized and required, upon request made in writing, by such 
why It IS iiot. pgj.gQ^ ^j, persons, or any on his, her or their behalf, attested and subscribed 
by two witnesses who were present at the delivery of the same, to award and 
Shall grant grant an habeas corpus, under the seal of such court, whereof he shall then be one 
the Writ, of the judges; to be directed to the officer or officers in whose custody the 
d^^ t d P'^^f'ty so committed or detained, shall be; v&i\xvx\?ih\Q immediate before the 
said lord-chancellor or lord keeper, or such justice, baron, or any other justice 
or baron of the degree of the coif, of any of the said courts ; and upon service 
thereof as aforesaid, the officer or officers, his or their under-officer or under- 
officers, under-keeper or under-keepers, or their deputy, in whose custody the 
party is so committed or detained, shall within the time respectively before 
limited, bring such prisoner or prisoners, before the said lord-chancellor or 
lord-keeper, or such justices, barons, or one of them, before whom the said 
writ is made returnable; and in case of his absence, before any other of them, 
with the return of such writ, and the true causes of the commitment and de- 
Prisoner tobetainer ; and thereupon, within two days after the party shall be brought before 
discharged^ them, the said lord -chancel lor or lord-keeper, or such justice or baron before 
upon recogni- v^rj^Qpf^ ^\^q prisoner shall be brought, as aforesaid, shall discharge the said pris- 
zance- oner from his imprisonment, taking his or their recognizance with one or more 
surety or sureties, in any sum according to their discretions, having regard to 
the quality of the prisoner and nature of the offence, for his or their appearance 
in the court of king's bench the term following ; or at the next assizes, sessions 
or general jail delivery of and for such county, city or place where the com- 
mitment was, or where the offence was committed ; or in such other court 
where the said offence is properly cognizable, as the case shall require. And 
Papers to be ^hen shall certify the said writ with the return thereof, and the said recogni- 
returned. zance or recognizances into the said court where such appearance is tobemade. 
Unless the Unless it shall appear unto the said lord-chancellor, or lord-keeper, or justice or 
Commitment justices, or baron or barons, that the party so committed is detained upon a 
showsthat the legal process, order or warrant, out of some court that hath jurisdiction of 
^^f^'/lii^ criminal matters, or by some warrant signed and sealed with the hand and 
seal 01 any oi the said justices or barons, or some justice or justices oi the 



JUDICIARY.— HABEAS CORPUS. 195 

peace, for such matters or offences for the which, by the law, the prisoner is 
not bailable. 

547. IV. Provided always^ and he it enacted^ That if any person shall Writ when 
have wilfully neglected, by the space of two whole terms after his imprison- not to be 
ment, to pray a habeas corpus for his enlargement, such person so wilfully ^^^^ t Ji^^^" 
neglecting shall not have any habeas corpus to be granted in vacation time, in 
pursuance of this act. 

548. V. And be it further enacted, That if any officer or officers, his or liability of 
their under-officer or under-officers, under-keeper or under-keepers, or deputy, OfiQcer neg- 
shall neglect or refuse to make the returns aforesaid, or to bring the body or lecting or re- 
bodies of the prisoner or prisoners, according to the command of the said writ, f'^^i'^S *o do 
within the respective times aforesaid ; or upon demand, made by the prisoner this act 

or person in his behalf, shall refuse to deliver, or within the space of six hours 
after demand, shall not deliver to the person so demanding, a true copy of the 
warrant or warrants of commitment and detainer of such prisoner, which he 
and they are hereby required to deliver accordingly ; all and every the head- 
jailers and keepers of such prisons, and such other person in whose custody 
the prisoner shall be detained, shall for the first offence, forfeit to the prisoner 
or party grieved, the sum of one hundred pounds, and for the second offence, 
the sum of two hundred pounds, and shall and is hereby made incapable to 
hold or execute his said office. The said penalties to be recovered by the 
prisoner or party grieved, his executors or administrators, against such 
offender, his executors or administrators, by any action of debt, suit, bill, 
plaint or information, in any of the king's courts at Westminster ; wherein no 
essoin, protection, privilege, injunction, wages of law or stay of prosecution 
by non vult ulterius prosequi.^ or otherwise, shall be admitted or allowed, or 
any more than one imparlance. And any recovery or judgment, at the suit 
of any party grieved, shall be a sufficient conviction, for the first offence; and 
may [any] after recovery or judgment, at the suit of a party grieved, for any 
offence after the first judgment, shall be a sufficient conviction to bring the 
officers or person, within the said penalty, for the second offence. 

549. VI. And for the prevention of unjust vexation by reiterated commit- Person dis- 
ments for the same offence : JBe it enacted, That no person or persons which shall charged under 
be delivered, or set at large upon any habeas corpus, shall at any time hereafter, H^heas Cor- 
be again imprisoned or committed for the same offence, by any person or per-^g.^^jj^^^j^^g^j 
sons whatsover, other than by the legal order and process of such court wherein for same of- 
he or they shall be bound by recognizance to appear, or other court having juris- fence, 
diction of the cause. And if any other person or persons shall knowingly, con- 
trary to this act, re-commit or imprison, or knowingly procure or cause to be re- 
committed or imprisoned, for the same offence or pretended offence, any per- 
son or persons delivered or set at large as aforesaid, or be knowingly aiding or 

assisting therein, then he or they shall forfeit to the prisoner or party grieved, 
the sum of five hundred pounds ; any colorable pretence or variation in the war- 
rant or warrants of commitment notwithstanding, to be recovered as aforesaid. 

550. VII. Provided aliaays^ andbe it further enacted^ That if any person ^^^^^^^ ^^ 
or persons shall be committed for high-treason or felony, plainly and specially mitted for 
expressed in the warrant of commitment, upon his prayer or petition in open Treason or 
court, the first week of the term, or the first day of the sessions of oyer and J'elony,^ shall 
terminer and general jail-delivery, to be brought to his trial, shall not ])e "® ^°^^^*^^ 
indicted some time in the next term, sessions of oyer and terminer or general qj. j^^ ^^ ^^^jj' 
jail-delivery, after such commitment, it shall and may be lawful to and for the 

judges of the court of king's bench and justices of oyer and terminer or general 
jail-delivery, and they are hereby required, upon motion to them made in open 
court, the last day of the term, sessions or jail-delivery, either by the prisoner 
or any one in his behalf, to set at liberty [the prisoner] upon bail, unless it • 



196 



JUDICIARr.— HABEAS CORPUS. 



And tried the 

term after or 

discharged. 



This act does 
not extend to 
civil matters. 



Prisoner not 
to be removed 

from one 
Prison to an- 
other, but ac- 
cording to 
law. 



Penalty for 

denying Ha- 

beas Corpus. 



Where the 
"Writ runs. 



Subjects not 
to be sent to 
foreign pris- 

' ons. 



appear to the judges and justices, upon oath made, that the witnesses for the king 
could not be produced the same term, sessions or general jail-delivery. And if 
any person or persons, committed as aforesaid, upon his prayer or petition in 
open court, the first week of the term, or first day of the sessions of oyer and 
terminer and general jail-delivery, to be brought to his trial, shall not be 
indicted and tried the second term., sessions of oyer and terminer or general 
jail-delivery, after his commitment, or upon his trial shall be acquitted, he shall 
be discharged from his imprisonment. 

551. VIII. Provided alioays, That nothing in this act shall extend to dis- 
charge out of prison any person charged in debt, or other action, or with pro- 
cess in any civil cause, but that after he shall be discharged of his imprison- 
ment for such his criminal offence, he shall be kept in custody, according to 
law, for such other suit. 

552. IX. Provided ahoays^ and he it e^iacted^ That if any person or 
persons, subjects of this realm, shall be committed to any prison, or in cus- 
tody of any officer or officers whatsoever, for any criminal or supposed 
criminal matter, that the said person shall not be removed from the said 
prison and custody into the custody of any other officer or officers, unless 
it be by habeas corpus or some other legal w^'it ; or w^here the prisoner is 
delivered to the constable or other inferior officer, to carry such prisoner 
to some common jail ; or where any person is sent by order of any judge 
of assize, or justice of the peace, to any common work-house or house-of- 
correction ; or where the prisoner is removed from one prison or place to 
another, within the same county, in order to his or her trial or discharge, 
in due course of law^, or in case of sudden fire or infection, or other neces- 
sity. And if any person or persons, shall after such commitment afore- 
said, make out and sign or countersign any warrant or warrants, for such 
removal aforesaid, contrary to this act, as well he that makes or signs or 
countersigns such w^arrant or w^arrants, as the officer or officers that obey 
or execute the same, shall suffer and incur the pains and forfeitures in this 
act before-mentioned, both for the first and second offence respectively, to 
be recovered in manner aforesaid, by the party grieved. 

553. X. Provided also^ and he it further enacted^ That it shall and 
may be lawful to and for any prisoner and prisoners, as aforesaid, to move 
anci obtain his or their habeas corpus^ as w^ell out of the high court of 
chancery, or court of exchequer, as out of the courts of king's bench or 
common pleas, or either of them. And if the said lord-chancellor or lord- 
keeper, or any judge or judges, baron or barons, for the time being, of 
the degree of the coif, of any of the courts aforesaid, in vacation-time, 
upon vieAV of the copy or copies of the warrant or w^arrants of commitment 
or detainer ; or upon oath made that such copy or copies were denied, as 
aforesaid, shall deny any writ of habeas corpus^ by this act required to be 
granted, being moved for, as aforesaid, they shall severally forfeit to the 
prisoner or party grieved, the sum of five hundred j^ounds, to be recovered 
in manner aforesaid. 

554. XI. And he it declared and enacted^ That an habeas corpus^ 
according to the true intent and meaning of this act, may be directed and 
run into any county palatine, the cinque ports, or other privileged j^laces 
within this kingdom of England, dominion of Wales, or town of Berwick- 
upon-Tweed, and the islands of Jersey or Guernsey. Any law or usage to 
the contrary notwithstanding. 

555. XII. And for preventing illegal imprisonments in prisons beyond 
the seas: Be it farther enacted^ That no subject of this realm, that now 
is, or hereafter shall be, an inhabitant or resident of this kingdom of Eng- 
land, dominion of Wales, or town of Berwick-upon-Tweed, shall or may be 



JUDICIARY.— HABEAS CORPUS. 197 

sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, 
garrisons, islands or places beyond the seas, which are, or at any time here- 
after, shall be within or without the dominions of his majesty, his heirs or 
successors ; and that every such imprisonment is hereby enacted and 
adjudged to be illegal. And that if any of the said subjects, now is or 
hereafter shall be so imprisoned, every such person and persons so impris- 
oned, shall and may for every such imprisonment, maintain by virtue of 
this act, an action or actions of false imprisonment, in any of his majesty's 
courts of record, against the person or j^ersons by whom he or she shall be 
so committed, detained, imprisoned, sent prisoner or transported, contrary 
to the true meaning of this act ; and against all or any person or persons 
that shall frame, contrive, write, seal or countersign, any warrant or wri- 
ting for such commitment, detainer, imprisonment or transportation, or 
shall be advising, aiding or assisting in the same, or any of them. And the The penalty, 
plaintiff in every such action shall have judgment to recover his treble 
costs, besides damages ; which damages so to be given, shall not be less 
than five hundred pounds. In which action no delay, stay or stop of pro- 
ceeding, by rule, order or command ; nor no injunction, protection or priv- 
ilege whatsoever, nor any more than one imparlance, shall be allowed, 
excepting such rule of the court wherein the action shall depend, made in 
open court, as shall be thought in justice necessary, for special cause, to be 
expressed in the said rule. And the person or persons who shall know- 
ingly, frame, contrive, write, seal or countersign, any warrant for such 
commitment, detainer or transportation ; or shall so commit, detain, 
imprison or transport any person or persons, contrary to this act ; or be 
any ways advising, aiding or assisting therein, being lawfully convicted 
thereof, shall be disabled from thenceforth, to bear any office of trust or 
profit, within the said realm of England, dominion of Wales, or town of 
Berwick-upon-Tweed, or any of the islands, territories or dominions there- 
unto belonging ; and shall incur and sustain, the pains, penalties and forfeit- 
ures limited, ordained and provided, in and by the statute of provision and 
prcBniU7iire^ made in the sixteenth year of king Richard the second ; and 
be incapable of any pardon from the king, his heirs or successors, of the 
said forfeitures, losses or disabilities, or any of them. 

556. XIII. Provided always, That nothing in this act shall extend to give Except per- 
benefit, to any person who shall, by contract in writing, agree with any mer- sons contract- 
chant or owner of any plantation, or other person whatsoever, to be trans- ^°g- 
ported to any parts beyond the seas, and receive earnest upon such agree- 
ment, although that afterwards such person shall renounce such contract. 

557. XIV, Promded ahoaysy and he it enacted, That if any person or Convicts may- 
persons, lawfully convicted of any felony, shall in open court pray to be ^^ trans- 
transported beyond the seas, and the court shall think fit to leave him or them ported. 

in prison for that purpose, such person or persons may be transported into 
any parts beyond the seas ; this act, or any thing therein contained, to the 
contrary notwithstanding. 

558. XV. Provided also, and he it enacted, That nothing herein con- ^\^q when 
tained, shall be deemed, construed or taken, to extend to the imprisonment of this act began 
any person, before the first day of June, one thousand six hundred seventy to operate. 
and nine ; or to any thing advised, procured or otherwise done, relating to 

such imprisonment. Any thing herein contained, to the contrary notwith- 
standing. 

559. XVI. Provided also^ That if any person or persons, at any time Persons to be 

resident in this realm, shall have committed any capital offence in Scotland or sent for trial 

Ireland, or any of the islands, or foreign plantations of the king, his heirs or *o *l^e place 

successors, where he or she ou^^ht to be tried for such offence, such person or ^^^"^^ *^® ^^' 
' ° ; r lence was 

committed. 



198 JUDICIARY.— HABEAS CORPUS. 

persons may be sent to such place, there to receive such trial, in such manner 
as the same might have been used before the making of this act. Any thing 
herein contained, to the contrary notwithstanding. 
Time within 560. XVII. Provided also^ and be it enacted, That no person or persons 
which suits s'lall be sued, impleaded, molested or troubled, for any offence against this 
under this act ^^|-^ unless the party offending be sued or impleaded for the same, within two 
hrouffht years at the most, after such time wherein the offence shall be committed, in 
case the party grieved shall not then be in prison ; and if he shall be in prison, 
then within the space of two years after the decease of the person imprisoned, 
or his or her delivery out of prison, which shall first happen. 
After tbe As- 561. XVIII. And to the intent no person may avoid his trial at the assizes 
sizes pro- or general jail-delivery, by procuring his removal before the assizes, at such 
clauiied, no ^i^-je j^g \^q cannot be brought back to receive his trial there. JBe it enacted^ 
be remored "^hat after the assizes proclaimed for that county where the prisoner is de- 
but by the tained, no person shall be removed from the common jail upon any habeas 
Judge. corpus granted in pursuance of this act, but upon any such habeas corpus^ 
shall be brought before the judge of assize, in open court, who is thereupon to 
do what to justice shall appertain. 
Assizes over, 562. XIX. Provided nevertheless^ That after the assizes are ended, any 
may have person or persons detained, may have his or her habeas corpus^ according to 
a . orpus. ^1^^ direction and intention of this act. 
Defendants 563. XX. Ajid be it also enacted, That if any information, suit or action 
may plead the shall be brought or exhibited against any person or persons for any offence 
Generallssue. committed or to be committed against the form of this law, it shall be lawful 
for such defendants to plead the general issue, that they are not guilty, or that 
they owe nothing, and to give such special matter in evidence to the jury that 
shall try the same; which matter being pleaded had been good and sufficient 
matter in law to have discharged the said defendant or defendants against the 
said information, suit or action ; and the said matter shall be then as available 
to him or them, to all intents and purposes, as if he or they had sufficiently 
pleaded, set forth or alleged the same matter in bar or discharge of such in- 
formation, suit or action. 
Persons com- ^^^- ^^I- ^^^ because many times persons charged with petty-treason 
raittedasac- or felony, or as accessories thereunto, are committed upon suspicion only, 
cessories-be- whereupon they are bailable or not, according to the circumstances making out 
fore-the-fact, '^qj^ suspicion, are more or less weighty, which are best known to the justices 

o^,.^^,. Jj^r.x/ pf the peace that committed the persons, and have the examinations before 

son or relony, ^ r i«./>i.i t-*.?/. i 

shall not be them, or to other justices of the peace m the county : Be it therejore enacted^ 

removed or That where any person shall appear to be committed by any judge or justice 

bailed other- of the peace, and charged as accessory -before-the-fact, to any petty treason or 

iTfcf e th"^ ft^lony, or upon suspicion thereof; or with suspicion of petty treason or felony, 

act. w^hich petty treason or felony shall be plainly and specially expressed in the 

warrant of commitment, that such person shall not be removed or bailed by 

virtue of this act, or in any other manner than they might have been before 

the making of this act. 

An Act to amend the seventh section of an act, entitled " an act to 

amend an act entitled an act to revise and amend the Judiciary System 

of this State, passed the 16th day of February, 1799." And to provide 

for opening and adjourning the several Courts of Ordinary in this State, 

in certain 0,2.^^'$,.— Approved Pec. 20, 1823. 

Majority of J. 565. From and after the passage of this act, it shall not be lawful for 

I C. necessary any one or more of the justices of the inferior courts of this State, to dis- 

tuni^of i^S" ^^^^'g^ or admit to bail, any person under a Avrit of habeas corpus.^ unless 

Corpus. ^ majority of the justices of said court shall concur in opinion. 



JUDICIARY.— HABEAS CORPUS. 



199 



An" Act to authorize and empower the Justices of the Inferior Courts of 
this State, to discharge Criminals or Offenders against the law, from 
Jail, in certain cases. And also, to dischaT-ge defendants in certain civil 
cases. — Approved Dec. 29, 1847. 

Whereas^ it sometimes happens that Criminals and Offenders against the 
law, are sentenced to imprisonment in the common Jail, for a definite pe- 
riod and until all Costs are paid by said Criminal or Offender. And whereas, 
it may happen that the Criminal or Offender so sentenced is unable to pay 
the Costs, the consequence of which is a perpetual imprisonment of the 
Criminal or Offender, at the expense of the County in which he may be 
imprisoned ; for remedy whereof — 

566. Sec. I. JBe it enacted^ That from and after the passage of this act. Persons una- 
when any criminal or offender against the laws of this State, shall be so VJl,*'^ P^y 
confined in any of the jails thereof, under a sentence of imprisonment for be^discharffSf 
a definite period and until all costs are paid, and the said criminal or 
offender, after the time of his impi'isonment shall have expired, shall be 

unable to pay the costs, it shall and may be lawful for the justices of the 
inferior court of the county, in their discretion, (the whole court therein 
concurring) where such criminal or offender against the law, may be con- 
fined, to discharge him from such confinement. [See next Act.^ 

567. Sec. II, If any person or persons be imprisoned in the common jaii Fees not 
jail of any county in this State, on a mesne or final process for debt; if the paid, Defend- 
plaintiff in suit or execution, his agent or attorney, does not pay up, at the ^^.^ "'^y ^^ 
end of each and every week, the jail fees which have accrued, then and in ^^^ ^^^^ ' 
that case, the inferior court may, and they are hereby authorized, to dis- 
charge the defendant or defendants, by writ of habeas corpiis. — \8ee Insol- 
vent Debtor,'] 

Sec. III. All laws or parts of laws militating against this act, be and " 
the same are hereby repealed. 

An Act defining how many Justices of the Inferior Courts of this State, 
shall concur in opinion, to make the Judgment of said Court. — Approved 
Dec. 22, 1857. 

568. Sec. I. That from and after the passage of this act, in all cases ^ • , -f , ^ 
brought before the justices of the inferior courts of this State, a majority the Inferior 
of the justices presiding upon the trial of the same, shall pronounce the Courts suffi- 
judgment ; which judgment shall be binding, and as effectual as if a ma- cient. 
jority of the whole court were present and agreeing thereto. 

Sec. II. [Repeals conflicting laws.] 

An Act to require persons applying for a Writ of Habeas Corpus ad 
subjiciendum., in any State-case, to give the Prosecutor notice of the 
time and place, when said application will be heard. — Ap)proved Jan. 
22, 1852. 

569. Sec. I. Be it enacted^ That from and after the passage of this Notice of ap- 
act, that no court shall sit upon and determine anv application for a writ plication foi 



for 



of habeas corpus ad subjicie7idum. m any case, unless the applicant for ^'^**;"/ Cor'pm 

• ^ 'X. iT' j-j. -t 1 1 n 1 *^ • 1 - . T . • must be given 

said writ, or nis attorney-at-law, shall have previously given timely notice to Prosecutor. 

to the prosecutor, or his attorney, of the time and place of the meeting of 

the court, to determine upon said application : Provided^ said prosecutor. 

or his attorney, resides in the county where the person is confined. 

Sec. II. That all laws militating against this act, be and the same are 

hereby repealed. 



200 JUDICIARY.— HABEAS CORPUS. 

Petition for the Writ under the Statute. 

STATE OF GEOKGIA, | To the honorable John H. Ragin, one of the 
Houston County. ^ Justices of the Inferior-Court of said County. 
The complaint and petition of John Doe^ showeth, that he now is, 
and for many days last j^ast, has been confined and holden in imprison- 
ment, without law or right, in the common Jail of said County, by 
Richard Roe, Jailer, of said County, (as will more fully appear from 
an examination of the accompanying copies of the Warrant of Arrest, 
and the Warrant of Commitment,) charged with the supposed crime 
of Assault and Battery. Wherefore, Petitioner prays your honor to 
issue the State's Writ of Habeas Corpus ad Subjiciendum, that Petitioner, 
together with the cause of his caption and detainer, may be brought 
before your honor, to the end that what appertains to justice may be 
done. And your Petitioner will ever pray, &c. This May 1, 1859. 

James A. Pkingle, PetW^s Atfy. 

Affidavit if the Officer refuses Copies of the Warranty etc. 

STATE OF GEORGIA, ) In person appeared before the undersigned, a 
Houston County. j Justice of the Peace, in and for said County, John 
Jones and John Smith, who, being duly sworn, say that they were 
present, on yesterday, the thirtieth day of April, of the present year, 
when John Doe, now confined in the common Jail of said County, applied 
to Richard Roe, Jailer of sdi\di County, for copies of the Warrant of 
Arrest, and the Warrant of Commitment, and other papers, against him, 
the said John Doe, when said Richard Roe, refused, wholly and entirely, 
to furnish said John Doe with said copies, so demanded. 

Sworn to and subscribed, ) JohN JoNES. 

before me, this 3Imi 1, 1859. >• to 

James Mack, J. P. ) JOHN SmITH. 

Note.— If, upon application to the Jailer, copies of the proceedings be furnished, the 
above Affidavit is unnecessary and should be omitted. 

Notice to the other Justices. 

STATE OF GEORGIA, | To the honorable Charles Anderson, John D. 

Houston County. ^ Winn, William F. Postell Sindi Henry M. Holtzclaw, 
Justices of the Inferior Court of said County. 

Whereas, John Doe is now confined in the common Jail of said 
County, and has, this day, made application to me for the Writ of 
Habeas Corpus ad Subjiciendum. And whereas, I have issued said 
Writ, returnable at ten d' clock on to-morrow morning, at Perry, in said 
County. You are, therefore, hereby requested to attend and associ- 
ate upon the return of said Writ, at the time and place mentioned. 

Witness my hand and official signature, this May 1, 1859. 

John H. Eagin, J. I. C. 

The Writ of Habeas Corpus. 

STATE OF GEORGIA, ) 
Houston County. \ To Richard Roe, Jailer of said County — Greeting. 

Whereas, John Doe, now confined in the Jail of said County, has 



JUDICIARY.— HABEAS CORPUS. 201 

made his complaint, by Petition, to the undersigned, one of the 
Justices of the Inferior Court of said County, alleging that he is now 
unlawfully imprisoned, b}^ you, the said Richard Roe^ in the common 
Jail of said County, and praying for the State's Writ of Haheas Corpus 
ad Subjiciendum^ to the end that he, with the cause of his imprison- 
ment, may be brought before me and my associate Justices, that what 
appertains to justice may be done; as by said complaint of the said 
John Doe^ dated the first day of May , 1859, appears. These are, 
therefore, by the authority of the State of Georgia, to command you, 
on to-morroiu^ by ten o'clock in the forenoon, to bring the body of the 
said John Doebefore the Justices of the Inferior Court of said County, 
at Perry^ in said County, with the cause of his being detained and im- 
prisoned by you. And him keep, subject to the order of the Court, 
in the premises. 

Witness my hand and official signature^ this May 1, 1859. 

John H. Kagin, J. I. C. 
"j% the Statute of the thirty-first of King Charles the Second.^'' 

Return of the Jailer. 

STATE OF GEORGIA, i In obedience to the within Writ and by vir- 
Hou&ion County. \ tue of the Same, I have taken the body of the 
within named John Doe from the common Jail in said County, and 
have him at Perry^ in said County, before the honorable John H, 
Ragin, Charles D. Anderson and William T. Swifts Justices of the In- 
ferior Court of said County. And for the cause of his detention and 
imprisonment in said Jail, I assign and state, that on the tenth day of 
Aj>ril last past, said John Doe was brought and committed to the 
said Jai], by John Jacobs^ a Constable of said County, by virtue of a 
Warrant of Commitment^ which is here produced. And I further state, 
that the said Constable, at the time of the commitment of the said 
John Doe, left with me as Keeper of said Jail, the original Warrant 
for the Arrest of said John Doe^ charging him with the crime of As- 
sault and Battery, which warrant is also here produced. And the ex- 
amination of said John Doe and the witnesses against him, taken be- 
fore James Mack, one of the Justices of the Peace in and for said 
County, which is also here produced. I therefore, assign the 
premises aforesaid, as the causes of the detention and imprisonment of 
the said John Doe, in said Jail. All of which is respectfully submit- 
ted, this May 2, 1859. 

ElCHARD EOE, J. H. C. 

Judgment of the Court, 

On the return of the Habeas Corpus o^ John Doe, and on the hearing 
thereof, it was made to appear to the Court that the Warrant of Com- 
tnitment issued by James Made, one of the Justices of the Peace for said 
County, against him the said John Doe, by which he was committed 
and detained in Jail, by Richard Roe, Jailer of said County, was de- 
fective and insufficient in this, to wit, that said Warrant of Commit- 
ment did not state the time and "place, of the committing of the said 



202 JUDICIARY.— HABEAS CORPUS. 

crime of Assault and Battery witli whicli said John Doe was charged 
and held in prison. It is, therefore adjudged, that the said Warrant 
of Commitment is insufficient to detain said John .Doe in prison ; and 
thereupon, it is ordered, and this Court doth order, the said John Doe 
to be dismissed, and he is hereby discharged from said imprisonment. 
And the said Jailer of said County, is hereby ordered to release him 
accordingly. This May 2, 1859. 

John H. Eagin, J. L. C. 

Charles Anderson, J. L. C. 

Wm. T. Swift, J. L. C. 

Habeas Corpus at Common-Law. 

Note. — The writ of Habeas Corpus at common-law, extends to all cases of illegal Con- 
finement, -whether in a public prison or elsewhere, "The following are some of the cases 
in which the writ at common-law has issued. For a young ladj^ decoyed away from her 
father — for a wife confined by her husband — at the instance to have his wife brought up 
who is in the custody of some other person, although there may be articles of separation 
between them, but not to put her in his possession. And if she is so confined that she 
cannot make affidavit, the Writ shall go without affidavit, to bring her up that she may 
make it. At the instance of a father for his son, in the custody of his aunt — and at the 
instance of a father for his daughter, aged eighteen, who was a kept mistress. Where it 
was alleged that the prisoner was mad, the Court ordered an inspection by her nearest 
relation, her attorney and a physician, and also judged from its own view in Court." — 
Frin. Dig. 919. 

In Eaheas Corpus at common-law " the Courts are not bound by the return to the Writ, 
but they may discharge the Prisoner if it should appear by the most manifest proof that his 
detainer is most unwarrantable and in direct violation of law." — Bac. Abr. 

The Writ at common-law must be supported by Affidavit. 

" Whenever a person is imprisoned by any person whatsoever, whether he be one con- 
cerned in the administration of justice, as a Sheriff, Jailer, etc. ; or a private person, the 
Writ must be directed to him." — Bac. Abr. 

" In this State, the Petition for a Writ of Habeas Corpus must be directed and made 
to the Judge of the Superior Court ; or, in his absence, to the Justices of the Inferior 
Court, or one of them," — Sch. Dig. 

Petition for the Writ at Coramon-Law. 

STATE OF GEORGIA, \ To the honorable Charles Anderson, one of the 
Houston County. j" Justices of the Inferior Court of said County. 
The complaint and petition of John Doe, showeth, that your Peti- 
tioner is the legitimate father of William Doe^ a Minor of the age of fifteen 
years. That now and for some time past, Richard Eoe of said County, 
has taken and keeps in his possession and control, away from your 
Petitioner, without lawful warrant or authority, the person of the said 

William Doe^ son of your Petitioner, as aforesaid. Your Petitioner avers, 
that he has frequently applied to said Richard Roe^ and has endeavored 
to induce him, by persuasion and demand, to deliver to your Peti- 
tioner, the person of him the said William Doe; notwithstanding, said 
Richard Roe fails, neglects and refuses so to do; wherefore, Petitioner 
prays your honor to grant to your Petitioner, the State's Writ of 
Haheas Corpus at common-law, directed to the said Richard Roe^ com- 
manding and requiring him, to produce the person of him the said 

William Doe^ before your honor, at such time and place, as to your 
honor shall seem meet and proper^ to the end, that what appertains to 
justice may be done. And your Petitioner will ever pray, etc. 

John M. Giles, Pefr's Att'y. 



JUDICIARY.— INTEEEST AND USURY. 203 

In person, appeared before the undersigned, a Justice of the Peace in 
and for said County, John Doe^ the Petitioner in the above and forego- 
ing Petition named, who being duly sworn saith, that the facts in the 
above Petition stated, are true, to the best of his knowledge and belief. 

Sworn to and subscribed, ) 

before me, this Mmj 1, 1859. > JOHN DoE. 

James Mack, J. I\ ) 

KoTE. — The other proceedings are the same as when the "Writ is issued under the Stat- 
ute. 



INTEREST AND USURY. 

An Act to establish an uniform mode of calculating Interest in this State, 
and to prevent the collection of Compound Interest. — Approved Nov. 
23, 1814. 
IVhereas, it is just and equitable that there shall be an uniform and 

definite mode practised throughout the State, for calculating Interest — 

570. Sec. I. JBe it enacted^ That in future, the mode of calculating in- Rate of Inter- 
terest in this State, shall be at and after the rate of eight per cent, per ^^*- 
annum [1 per cent. — See next Act.'\ And whenever any payment shall be Payments go 
made on any note, bond, or other instrument; demand, execution, or ^^^st to the dis- 
judgment ; where any interest has accrued on any such note, bond, or ^ ^^wggt ^' 
other instrument, execution, or judgment, such joayment, shall in the first 

place, be applied to the discharge of interest due ; and no part of the 
principal shall be considered as discharged until the interest shall have 
been first extinguished : Provided nevertheless^ that in all cases where the ^^ Interest 
payment made shall not be sufficient to discharge all the interest due, at: ^'^ jj^^^gg^^'^^ 
the time of the payment, no interest shall, at any future payment, be 
calculated on the balance of interest which was left unpaid. 

571. Sec. II. In all cases where judgments may hereafter be obtained. Judgments 
all such judgments shall be entered up for the principal sum due with the*^'^^^ Interest 
interest, but no part of such judgment shall bear interest, except the prin- principal, 
cipal which may be due on the original debt. Any law, usage, custom or 
practice, to the contrary notwithstanding. 

An Act to alter the law in relation to Interest on Money. — Approved 
Pec. 17, 1845. 

572. Sec. I. Be it enacted, That all contracts, bonds, notes and Interest seven 
assurances whatsoever, made after the passage of this act, by or with an P^J '^®^'^- J-'*^^* 
incorporated bank, or any other person or persons, whether natural or arti- ^^q^q declared 
ficial, for the payment of any principal, on money, goods, wares, or mer- to be usurious, 
chandize, or other commodities whatsoever, to be lent, covenanted, to be and the Inter- 
performed upon, or for any usury, whereupon or whereby there shall be ^^^ forfeited, 
reserved or taken above the rate of seven per centum per annum, shall be 

void and of no eifect, except so far as to authorize the recovery of the 
principal due thereon, and no more. — [Pitt see next Act.^ 

573. Sec. II. Any judgment hereafter rendered, in any court of this Interest on 
State, shall bear interest, so far as regards the principal debt, at the same co^?^a^!!r. 

11 11 I'li'T iSaUlc (In on 

rate as that borne by the contract upon which such judgment may be contract, 
obtained. 

An Act to alter and amend " an act to alter the law in relation to Interest 
on Money," approved i7th December, 1845. — Atwroved March 3, 
1856. 



204 



JUDICIARY.— INTEREST AND USURY. 



Principal sum 5T4. Sec. I. Be it enacted, That all contracts, bonds, notes, and 

and legal In- assurances whatsoever, made after the passage of this act, by or with an 

be^recovei-ed i^i^orporated bank, or any other persons, whether natural or artificial, for 

at law. the payment of any principal, or money, goods, wares or merchandize, or 

other commodities whatsoever, to be lent, covenanted, to be performed 

upon ; or for any usury, whereupon or whereby there shall be recovered 

Ireceived] or taken, above the rate of seven per centum per annum, shall 

be void and of no eiFect, except so far as to authorize the recovery of the 

principal and legal interest due thereon, and no more ; it being the intent 

and meaning of this act, that the usurious interest shall be made void, in 

all cases where usury shall be received or taken, and shall not be recovered ; 

but, that in all such cases, the principal and legal interest shall and may 

be recovered. And that all laws, &c. militating against this act, be and 

the same are hereby repealed. 

The folloioi7ig Table icill exhibit the Hate of Interest in the several States 

forming the Union. 



1. Maine, six per cent. 

2. New Hampshire, six per cent. 

3. Vermont, six per cent. 

4. Massachusetts, six per cent. 

5. Khode Island, six per cent. 

6. Connecticut, six per cent. 

7. New York, seven per cent. 

8. New Jersey, six per cent. 

9. Pennsylvania, six per cent. 

10. Delaware, six per cent. 

11. Maryland, six per cent. 

12. Virginia, six per cent. 

13. N. Carolina, six per cent. 

14. S. Carolina, seven per cent. 

15. Georgia, seven per cent. 

16. Alabama, eight per cent. 

17. Florida, six per cent. 

18. Mississippi, six per cent. 



&5^ 
«5 



cS" a., 



8 



19. Louisiana, six per cent. 

20. Texas, eight per cent. 

21. Ohio, six per cent. 

22. Indiana, six per cent. 

23. Illinois, six per cent. 

24. Michigan, seven per cent. 

25. Wisconsin, seven per cent. 

26. Iowa, seven per cent. 

27. Missouri, six per cent. 

28. Kentucky, six per cent. 

29. Arkansas, six per cent. 

30. Tennessee, six per cent. 

31. California, (no law.) 

32. Oregon. 



J ^ ^ 



^3 

^1 



I 

) Pacific 
\ States. 



On Debts, or Judgments in favor of 
the United States ; Interest six per 
cent. 



Upon the plea 
of Usury 
being filed, 
and Notice 
given. Plain- 
tiff to make 
affidavit of the 
truth of the 
Plea. 



Should the 
Plaintiff fail, 
the Defendant 
may make affi- 
davit. 



An Act to compel parties Plaintiffs, in the several Courts of this State, where 
the Plea of Usury is filed, to discover, on oath, the truth or falsehood of 
the facts stated in such Plea ; or to allow the Defendant, in case of refusal 
by the Plaintiff, to establish the facts contained in such Plea, by his own 
oath; without a Bill for Discovery. — Approved Dec. 28, 1842. 

575. Sec. I. Me it enacted. That from and after the passage of this act, 
that in all cases, in the several courts in this State, when the plea of usury 
shall be pleaded, the party plaintiff in such case, upon notice of such plea, 
accompanied by a copy of such plea ; and which shall be served upon said 
plaintiff, his agent or attorney, within one month from the filing of such plea 
of the case, (in the superior or inferior court, and within ten days, if the case 
is in any justices' court, or any other court,) discover on oath, by his writ- 
ten affidavit, to be made before some officer legally authorized to administer 
an oath, whether the fact or facts set forth in said plea are true as to the usury ; 
and whether or not, the contract upon which said suit is brought, was usurious ; 
and such written affidavit may be read in evidence on the trial of said case, by 
either party. 

576. Sec. II. If any party plaintiff shall fail or refuse to make the dis- 
covery, as provided in the first section of this act, that the party defendant in 
said case, may make an affidavit in writing, before any officer authorized to 
administer an oath, of the truth of the facts set forth in his plea, as to the 
usury therein pleaded, and said affidavit of the defendant, may be read on the 
trial by either party to said case. 



JUDICIARY.— LIMITATION OF ACTIONS. 



205 



577. Sec. III. The party, where affidavit is used as evidence, as provided Party swear- 
in the first or second sections of this act, shall be put upon the stand, and i^g ^^Y he 
cross-examined by the other party, as other witnesses. cross-examin- 

Sec. IV. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to collect Interest on Open Accounts, in this State, after they are 
due. And to fix the time when Accounts shall fall due, where the same is 
not agreed upon by the Parties. — Approved Dec. 10, 1858. 

578. That all accounts, in this State, made after the first day of January 
next, shall be held and considered as becoming due on the first day of January 
next after such accounts are made, unless a different day is agreed upon by 
the parties. And that all accounts, after becoming due, as aforesaid, shall 
draw interest at seven per cent, per annum ; and shall be placed upon the 
same footing, as regards interest, that liquidated demands are. 

II. [Repeals conflicting laws.] 



Open Ac- 
counts when 
considered 

due. 
Interest al- 
lowed upon 
them. 



Personal 
Property. 



LIMITATION OF ACTIONS. 

An Act limiting the time in which Suits in the Courts of Law, in this State, 
must be brought; and also, limiting the time in which Indictments are to 
be found and prosecuted, in certain cases ; and for other purposes therein 
mentioned. — Approved March 6, 1856. 

579. Sec. I. All suits for the recovery of real estate, shall be brought Real Estate, 
within seven years after adverse possession commences, and not after ; but 

no possession shall be considered adverse unless evidenced by written evidence Adverse pos- 
of title ; nor shall any forged or fraudulent title be evidence of adverse pos- session, 
session. 

580. Sec. II. All suits for the recovery of personal property ; or for 
damages for the conversion or destruction of the same, shall be brought within 
four years after the right of action accrues, and not after. 

581. Sec. III. All suits for trespasses upon, or damages to real estate, Trespass to 
shall be brought within four years after the right of action accrues, and not ^^^^ Estate, 
after. 

582. Sec. IV. All suits for injuries to personal property, shall be brought Injuries to 
within four years after the right of action accrues, and not after. Personal 

583. Sec. V. All suits for injuries done to the person, shall be brought .^ f'^'op^^'^y- 

Iniuries to toe 
within two years after the right of action accrues, and not after. Person. 

584. Sec. VI. All suits for injuries done to the character or reputation, 
shall be brought within one year from the time the right of action accrues, and 
not after. 

585. Sec. VII. All suits upon judgments obtained out of this State, shall Foreign Judg- 
be brought within five years after such judgment shall have been obtained, and ments. 
not after. 

586. Sec. VIII. That no judgment hereafter obtained in the courts of this Domestic 
State, shall be enforced after the expiration of seven years from the time of Judgments 
its rendition, when no execution has been issued upon it ; and when execution '^hen extinct, 
has been issued, after the expiration of seven years from the time of the last ^ ^" 
entry upon the execution, made by the officer authorized to execute and 

return the same; but all such judgments shall be held and taken as fully 
satisfied and paid. 

587. Sec. IX. That all suits for the recovery of promissory notes, or other Promissory 
acknowledgments of indebtedness, under the hand of the party, shall be brought -^^*^^' ®^^' 



206 JUDICIARY.— LIMITATION OF ACTIONS. 

within six years after such promissory notes, or acknowledgments of indebted- 
ness became due, and not after. 
Open Acc'nts; 588. Sec. X. All suits for the recovery of open accounts, or damages for 
Damages for the breach of any contract, not under the hand, or [not] under the hand and 
breach ofCon- ^q^]^ ^f ^j^g, party sought to be charged, shall be brought within four years, next 

i^ac , c. ^^(.gj. ^i^Q right of action accrues, and not after. 
Bonds and In- 589. Sec. XI. All suits brought upon bonds, or other instruments under 
struments un-seal, shall be brought within twenty years after the right of action accrues, 
der seal, ^nd not after; but no instrument shall be considered sealed, unless so recited 
in the body of the instrument. 
Eights under 590. Sec. XII. All suits for the enforcement of rights accruing to individ- 
statutes, etc. uals, under statutes, acts of incorporation, or by operation of law, shall be 
brought within twenty years after the right of action accrues, and not after. 
Dower. 591. Sec. XIII. That when any widow shall be entitled to dower, applica- 

tion for the assignment of such dower, shall be made by said widow, within 
seven years from the time such right to dower accrued, and not after. 
Will. 592. Sec. XIV. That all proceedings requiring a will to be proven, in 

selemn form, or for setting aside and revoking the probate of a will, already 
granted, shall be commenced within seven years after said will shall have been 
admitted to record, and not after. 
Bill of Review. 593. Sec. XV. That all bills brought to review a decree of a court of 
equity, shall be brought within three years after such decree was rendered, 
and not after. 
Certiorari. 594. Sec. XVI. All writs of certiorari shall be allowed and brought within 
six months [th7^ee months] from the time [the] judgment sought to be reversed 
was rendered, and not after. 
Legacies and 595. Sec. XVII. All suits for the recovery of legacies and distributive 
Distributive shares, and against those who are or have been guardians, for the recovery of 
^^^^' property or money which has come to their hands as guardians, shall be 
brought within ten years next after the right of action accrues, and not after. 
Other rights 596. Sec. XVIII. All other suits to which any person may be entitled, in 
of Action, the courts of law in this State, for the enforcement of rights, or redress of 
wrongs, not otherwise and not herein-before provided for, shall be brought within 
four years after the right of action accrues, and not after. 
Limitation 597. Sec. XIX. That when any of the persons entitled to sue as aforesaid, 
when not to shall be married women, idiots, or lunatics, or imprisoned, or under the age 
operate ''igstQ^^-^yg^.,!. j^^ years at the time the cause of action accrues, such* persons shall 
sons ^® entitled to sue, within the time aforesaid, after their respective disabilities 

are removed. 
When this 598. Sec. XX. That if after the right to sue commences, persons shall come 
statute ceases under any of the disabilities aforesaid, this statute shall cease to operate against 
to run. their rights, until such disabilities shall be removed : Provided, that no person 
who shall voluntarily take upon himself such legal disabilities, shall be entitled 
to the provisions of the foregoing section. 
Eights of 599. Sec. XXI. That if any person to whom any right to sue as aforesaid, 
unrepresented shall accrue in his lifetime, shall depart this life before suit brought, the time 
i^iStates. Qj. tip-jgs within which suit is to be brought, under the previous sections of this 
act, shall not be computed against his right, from the time of his death, until 
Eight to sue there shall be a representation upon his estate. And when the right to sue, 
accruing as aforesaid, shall not accrue until after the death of an}' person, the time 
after the death within which suit is to be brought, under the provisions of this act, shall not 
or ine party. ]3eg;^ ^-^^ j^p computed until there is representation upon his estate : Provided^ 
that in each of these cases, there be representation by an executor or adminis- 
trator, duly qualified, within five years from the death. 

600. Sec. XXII. That where personal property shall be carried away or 



JUDICIARY.— LIMITATION" OF ACTIONS. 207 

secreted, so that the party entitled to sue for the same, knows not who is in Not knowing 
possession of it, or where it is, or against whom to bring his suit, the limitation whom to sue, 
of time in which suits for the recovery of personal property are to be brought, ^*^*"^*J ^^^ 
by the provisions of this act, shall not begin to be computed against such party, 
until he has discovered where such property is, and who is in possession of it. 

601. Sec. XXIII. That when any person against whom a right to sue Statute not to 
exists, shall remove from this State, the times mentioned, in this statute, ^^^Y^^^^^'^^^ 
in which suits are to be brought, shall cease to be computed in his favor, f^^ ^rom™the 
from the time of such removal, and so continue, until he shall return, and State. 

fix his residence in this State. 

602. Sec. XXIV. Where there is a joint right to sue, in favor of sev- Joint right to 

eral persons, and some of them are under the disabilities mentioned in the ^"®' action 

19th section of this statute, and others not, the times within which suits AoufiufJ! ^ 

^ 1 T, .. r* 1 • xin 1 • aisauuities re- 

are to be brought, under the provisions oi this statute, snail not begin to moved. 

be computed until such disabilities are removed. 

603. Sec. XXV. That in all cases of contracts for the payment of money. New Promise 
or other valuable thing, when the time within which suits are to be brought, . ™"s.* .^^ 
under the provisions of this act, shall have expired, no promise to pay the ^^ ^^^ ^^^' 
money, or other valuable thing, due upon such contract, or any part of it, 

shall be valid or binding upon the parties making it, unless the same shall 
be reduced to writing and signed by the party making such promise, or by 
some 23erson authorized by them. — [See 621.] 

604. Sec. XXVI. That where contracts have been made by a co-part- Co-partner 
nership, and such co-partnership shall be afterwards dissolved, no promise ^^^^r dissolu- 
made by one co-partner, after such dissolution, to pay a debt of said co- Jp"jJ^Jjj^^^^^!^_ 
partnership, (that is or may be barred by the provisions of this act,) shall mise of his 
be obligatory upon the other partners ; but shall only bind the partner associate, 
making the same. 

605. Sec. XXVII. In all cases of joint, or joint and several contracts. Joint con- 
which have or may become barred by the provisions of this act, no promise kJ^^^j/^u ^?u 
made by one of the joint contractors to perform such contract, shall be promise of his 
binding ujDon the other contractors, but only upon the person making the associate, 
promise. 

606. Sec. XXVIII. That in all cases where, by the laws now in force. Courts of 

a party may bring his suit, either in a court of equity, or a court of law, [3 7 effect- 
(and if he elects to bring his suit in a court of equity,) this statute shall statute the 
aifect his rights in the same manner as though he brought his suit in a same as Courts 
court of law, and may be plead in the same manner. of Law. 

607. Sec. XXIX. That when any person has bond fide and for a valua- Lien by judg- 
ble consideration, purchased real or personal property, and has been in "jent barred 
possession of such real property for four years, and such personal property ^^ real^pro- 
for two years, it shall be discharged of the lien of any judgment which pert}^ and 2 
may exist against the person from whom he purchased. years on per- 

608. Sec. XXX. That when any person shall be entitled to any right g^|tiP[°P^^*'-'- 
of suit in consequence of the fraudulent act of another, the time limited ^^ Fraud ^"^^ 
for the commencement of suit, by the provisions of this act, shall not begin when to be 
to be computed until the discovery of the fraud, by the party entitled to commenced, 
sue. 

609. Sec. XXXI. That indictments for murder may be found and pros- Indictment for 

ecuted at any time after the death of the person killed; in all other cases, '"'"^^ T^^^ 

when the punishment is death or perpetual imprisonment, the offender shall in other ca?es 

be indicted in the proper courts, within seven years next after the commission of Homicide. 

of the offence, and not after. In all other felonies, the offender shall be in- All other 

dieted, in the proper court, within four years next after the commission of Felonies. 

the offence, and not after. In all other cases, when by law, the punish- ^^-es below 

Felony. 



208 



JUDICIARY.— LIMITATION OF ACTIONS. 



Ofifender ab- 
sconding or 
concealing 
himself stat- 



prosecuted. 

Time within 
■which suits 
may be re- 
newed. 
Only one re- 



Set-off when 

and how 

barred. 



ment is fine or imprisonment, or fine and imprisonment in the common jail 
of the county, offenders shall be indicted, in the proper court, within two 
years, next after the commission of the offence, and not after. But if any 
such offender shall abscond from the State, or so conceal himself that he 
cannot be arrested ; or the offender shall be unknown ; the time of his ab- 
ute does not sence from the State, or his concealment, or of his being unknown, shall 

run. not be computed in the foregoing Umitation. 
Offences not 610. Sec. XXXII. Where any person shall be guilty of acts, which by 
specially pro- ^^^ \ii^,vs now in force, subject the offender to any penalty, fine or forfeiture, 
within what ^^^^ ^^® time of suing or prosecuting such offender, is not otherwise pro- 
time to be vided for in this act, no action, suit or indictment shall be brought against 
such offender unless the same be brought within one year next after the 
offence shall have been committed. 

611. Sec XXXIII. That when any suits shall be commenced within 
the times limited by this act, and the same shall be discontinued, dismissed, 
or the plaintiff non-suited, or judgment be arrested, during the pendency 
of such suit, the time within which such suit is to be brought, by the pro- 

uewal alio w'd. visions of this act, shall expire; it shall be lawful for the plaintiff to renew 
said suit, at any time within six months after such termination of the case ; 
but this right shall only extend to one renewal. 

612. Sec. XXXIV. That when any matter shall be pleaded as a set- 
off, in any suit, and said suit shall be dismissed, become non-suited, or 
judgment shall be arrested ; or where such matter of set-off may be dis- 
posed of without a hearing upon the merits, such matter of set-off shall 
not be barred until the expiration of six months, next after the time of 
such dismissal, discontinuance or becoming non-suited. 

Time on Open 613. Sec. XXXV. When any indebtedness exists, by open account. 

Accounts, the time within which suit is to be brought for recovery of such accounts by 

the provisions of this act, shall commence to be computed from the first 

day of the year next after the contracting of said accounts, and not before 

that time. 

614. Sec. XXXVI. In all cases when the right to sue is suspended by 
law, the time of such suspension shall not be computed in the limitations 
of this act. 

615. Sec. XXXVII. In all cases in this act, when the masculine 
gender is used, the feminine shall be included, when applicable to the case; 
and when the singular number is used, the plural number shall be included, 
when applicable to the case. 

State affected 616. Sec. XXXVIII. That when, by the provisions of this act, a private 
by this Act. person would be barred of his rights, the State shall be barred of her 
rights, under the same circumstances. 

617. Sec. XXXIX. That this act shall, in none of its provisions, inter- 
fere with the principles established in the courts of equity, in relation to 
laches, or stale demands ; or the equitable bars, in cases brought to said 
courts. 

618. Sec. XL. If after any administration, or letters testamentary 
Adm'r dying, granted, the executor or administrator dies, the statute shall cease to run 

^. f " ^ rf^ until there shall be a leoral representative of the estate, who can sue or be 
not run, etc. -, r^ • t -j r^ P -i • • • i ti 

sued : Frovided^ a larther admmistration be granted, or letters testamen- 
tary agreed to, within the expiration of five years. 
Eepealing sec- 619. Sec. XLI. That all acts and parts of acts, limiting the time w^ith- 
in which suits are to be brought, in the courts of law, in this State ; and also, 
limiting the time within which indictments are to be found and prosecuted ; 
and also, all other acts or parts of acts, conflicting with the provisions of 
this act, be and the same are hereby repealed. 



Right to sue 
suspended. 



Gender. 



Number. 



Cases in Equi 
ty, how af- 
fected. 



Executor or 



tion. 



JUDICIARY.— PARTNERS AND PARTNERSHIPS. 209 

620. Sec. XLII. This act shall commence and be of force, from and When this 

after the first day of June next. act commen- 

'' ces. 

An Act to require all Promises, Acknowledgments and Admissions of 
Debts, made after the Statute of Limitations has commenced running, to 
be reduced to Writing ; or some Note or Memorandum thereof, made 
in Writing and subscribed by the person or persons making the same, 
in order to revive said Notes or Debts. — Approved Feb. 20, 1854. 

621. Sec. I. That from and after the passage of this act, no promise, Promises, 
acknowledgment or admission of a debt, made after the statute of limita-^tc., after be- 
tions has commenced running, shall be sufficient to revive the same ; un- ^^^^.^^g \^ 
less such promise, acknowledgment or admission, shall be reduced to writing, or 
writing ; or some note or memorandum thereof [5e] made in writing, and insufficient to 
subscribed by the person or persons making the same, or some other charge party, 
person thereunto, by him lawfully authorized : Provided^ this act shall only 

operate upon and affect such promises, acknowledgments and admissions, 
as shall be made after its passage. 
Sec. II. [Repeals conflicting laws.] 

Note. — This Act was passed in 1854, and should have been published among the Acts of 
that year. The Compiler of the Acts of 1856 (amongst which the Act is found), makes this 
explanation; -'This Act was passed during the session of the Legislature of 1853 and 
1854, but not published in the volume of Laws, owing to its having been inadvertently 
mislaid in the Executive Department." 



PARTNERS AND PARTNERSHIPS. 

Ais" Act to authorize Limited Partnerships. — Approved Dec. 22^1887. 

622. Sec. I. Be it enacted^ That limited partnerships, for the transac- Limited Parti- 
tion of any mercantile, commercial, mechanical, manufacturing, mining or nerships 
agricultural business, within this State, may be formed, by two or more allowed, but 
persons, upon the terms, with the rights and powers, and subject to the ^j^^ ^J j^g^^./ 
conditions and liabilities herein prescribed ; but the provisions of this act ance purposes, 
shall not be construed to authorize any such partnership for the purpose 

of banking, or making insurance. 

623. Sec. II. Such partnerships may consist of one or more persons. General Part- 
who shall be called general partners, and who shall be jointly and severally, ^^^^• 
responsible as general partners ; and of one or more persons who shall Special Part- 
contribute, in actual cash, a specific sum, as capital, to the common stock, . ^ej-s, their 
who shall be called special partners, and w^ho shall not be liable for debts ^'^^^^^^7' 6*<5. 
of the partnership, beyond the fund so contributed by him or them, to the 

capital, except as herein-after provided. 

624. Sec. III. The general partners only shall be authorized to trans- Authority of 
act business, and to sign for the partnership, and to bind the same. General 

625. Sec. IV. Persons desirous of forming such partnership, shall Certificate 
make, and severally, sign by themselves or attorney-in-fact, a certificate ^wh it it must 
which shall contain — 1st, the name of the firm under which such partner- contain, 
ship is to be conducted — 2d, the general nature of the business intended 

to be transacted — 3d, the names of all the general and special partners 
inserted therein, distinguishing which are general and which are special 
partners, and their respective places of residence — 4th, the amount of 
capital which each special partner shall have contributed to the common 
stock — 5th, the period at which the partnership is to commence, and the 

14 



210 JUDICIARY.— PARTNERS AND PARTNERSHIPS. 

Power-of- period at which it shall terminate. And when made by such attorney-in- 
Att'y must be fact, the power-of-attorney, duly authenticated, shall be recorded, along 
recorded, ^^-^j^ g^^],^ certificate. 

Acknowledg- 626. Sec. V. The certificate shall be acknowledged by the 'several 
ment before pgi^gons signing the same, or their attorney-in-fact, befi^re a judge of the 
and certified superior or inferior court, or a justice of the peace, or notary public; and 
by bim. such acknowledgment shall be certified by the officer before whom the 
same is made. 
Certificate to 627. Sec. VI. The certificate and power of attorney-in-fact, so acknowl- 
th^ ^rrlr^^*^ edged and certified, shall be filed in the office of the clerk of the superior 
Court and (^^^^^'^ of the county in which the principal place of business of the part- 
recorded, nership shall be situated ; and shall also, be recorded by him, at large, in 
Doing bus!- a book to be kept for that purpose, open to public inspection. If the 
ness in several pg^^.^jjgj.gl^jp ^}-^r^]| }iave places of business situated in different counties, a 
must have tra'i^s^'i'ipt of the certificate, and power of attorney-in-fact, and of the 
transcript of acknowledgment thereof, duly certified by the clerk in whose office it 
Certificate re- shall be filed, under his official seal, shall be filed and recorded, in like 
corded. manner, in the office of the clerk of the superior court, in every such 
for ^recordin"^ county. And the clerk, for each and every registry required by this act, 

°' shall be entitled to the sum of five dollars. 
Affidavit to 628. Sec. VII. At the time of filing the original certificate, with the 
C -L'fi 1 evidence of the acknowledgment thereof, as before directed, an affidavit 

made evi- o^' affidavits of the several general partners, shall also be filed in the same 
dencc. office, stating that the sums specified in the certificate to have been con- 
tributed by each of the special partners to the common stock, have been 
actually and in good faith, paid in cash ; and a certified copy of such cer- 
tificate, and power-of-attorney, and affidavits, shall be evidence in all 
courts and places whatsoever. 
Not observing 629. Sec. VIII. No such partnership shall be deemed to have been 
. P^}"^' formed until such a certificate as is herein mentioned, shall have been 

ments parties '^^^^5 acknowledged, filed and recorded; nor until an affidavit shall have 
to be consid- been filed, as above directed. And if any fixLse statement be made in such 
ered as certificate or affidavit, or if such partnership be commenced before such 
General Part- certificate or affidavit is filed, all the persons interested in such partnership, 
shall be liable for all the engagements thereof, as general partners. 
Wben and 630. Sec. IX. The partners shall publish the terms of the partnership, 
where the Ayhen registered, for at least, six weeks, immediately after such registry, 
^the ^Partner° ^^ ^"® newspaper in the county in which the place of business is situated, 
ship is to be 'i^d in one newspaper in the city of Milledgeville. If no newspaper should 
made, be published in the county in which the business is to be transacted, the 
notice shall be published in all the newspapers in the city of Milledgeville, 
Consequence as before required. And if such publication be not made within two 
^ lishinff^ " ''^^^"^^'^ from the time of filing such certificate and affidavit, the partner- 
ship) shall be deemed general. 
Affidavit of 631. Sec. X. The affidavits of the publication of such notice, by the 
Printer may printers, publishers or editors of the newspapers in which the same shall 
^ filed ^° published, may be filed in the office of the clerk of the superior court 

in which the certificate has been filed, and shall be evidence of the facts 
therein contained. 
P^enewals how ^32. Sec. XI. Every renewal or continuance of such partnerships, 
effected, beyond the time originally fixed for its duration, shall be certified, acknowl- 
edged and recorded ; and an affidavit of a general partner be made and 
filed, and notice be given, in the manner herein required, for its oi'iginal 
formation. And every such partnership, which shall be otherwise renewed 
or continued, shall be deemed a general partnership. 



JUDICIARY.— PARTNERS AND PARTNERSHIPS. 211 

633. Sec. XII. Every alteration which shall be made in the names of Every mate- 
the partners, in the nature of the business, or in the capital or shares '^^^^^heration, 
thereof, or in any other matter specified in the original certificate, shall be ^ of tiie^^° 
deemed a dissolution of the partnership ; and every such partnership Avhich partnership, 
shall, in any manner, be carried on after any such alteration shall have 
been made, shall be deemed a general partnership, unless renewed as a 
special partnership, according to the provisions of the last section. 

634:. Sec. XIII. The business of the partnership shall be conducted Firm Name ; 
under a firm, in which the names of the general partners only, shall be in- business how 
serted, without the addition of the word "company," or any other general conducted, 
term ; and if the name of any special partner shall be used in such firm, 
he shall be deemed a general partner. 

635. Sec. XIV. Suits to be brought by any partnership, to be formed Suits for and 
under this act, shall be in the name or names of the general partners only ; against Part- 
and suits against such partnership, shall be brought against the general ^^^^ ^^^' 
partners only, except in such cases where the special shall be rendered 

liable as general partners ; in which cases suits may be brought against all 
the partners, jointly or severally ; or any one or more of the special j^art- 
ners may be sued in the same action with the general partners. 

636. Sec. XV. No part of the sum which any special partner shall No dividends 
have contributed to the capital stock, shall be withdrawn by him, or paid, ^*J ^^ V^^^ put 
or transferred to him, in the shape of dividends, profits, or otherwise, at^^Aj? f^u^l 
any time, during the continuance of the partnership, but any partner may, Spec'l Partner 
annually, receive lawful interest on the sum so contributed by him, if the may receive 
payment of such interest shall not reduce the original amount of such lav^ful inter- 
capital ; and if, after the payment of such interest, any profits shall remain 

to be divided, he may also, receive his portion of such profits, but shall not 
be liable for any debts previously contracted by the general partners. 

6.37. Sec. XVI. If it shall appear that by the payment of interest, or Debts must be 
profits, to any special partner, the original capital has been reduced, or the P''^^ before 
firm shall be unable to pay its debts, the partner receiving the same shall n^i-^g^aiiTe 
be bound to restore the interest, or profits, received by him, necessary to ceive interest 
make good his original share of the original stock. or dividends. 

638. Sec. XVII. A special partner may, at any time, examine into the Eights of 

state and progress of the partnership concerns, and may advise as to their Special Part- 

manaojement, but he shall not transact any business on account of the part- ^^.^ ^^ several 

■I • '' . .-'- instances 

nership, nor be employed, for that purpose, as agent or otherwise ; if he ]\xay act as 

shall interfere, contrary to these provisions, he shall be deemed a general Att'y at Law. 

partner, but he may act as attorney or counsellor-at-law, or in equity, for 

the partnership, without being liable to become a general partner. 

639. Sec. XVIII. The general partners shall be liable to account to General Part- 
each other, and to the special partners for their management of the busi- ners liable to 
ness of the firm, both in law and equity, as other partners now are by law account, 
and equity. 

640. Sec. XIX. Every partner who shall be guilty of any fraud, in the Partner guilty 
affairs or business of the partnership, shall be liable, civilly, to the party of fraud, lia- 
injured, to the extent of his damage ; and shall also be liable to an indict- We civuiy and 
ment for a misdemeanor, punishable by fine or imprisonment, or both, at ^^^"^^^^ 5"- 
the discretion of the superior court, by which he shall be tried. 

641. Sec. XX. Every sale, assignment, or transfer of any of the prop- Sales, assign- 
erty, or effects, of such partnership, made by such partnership, when in- ^^^^^y h^^^t 
solvent, or in contemplation of insolvency, or after, or in contemplation of ^g^J^' j^^j^JJ^^'^ 
the insolvency of any partner, with the intent of giving a preference to insolvency, 
any creditor of such partnership, or insolvent partner, over other creditors void. 

of such partnership ; and every judgment confessed, lien created, or secu- 



212 JUDICIARY.— PARTNERS AND PARTNERSHIPS. 

rity given, by such partnership, under the like circumstances and with the 
like intent, shall be void, as against the creditors of such partnership. 
Sales made or 642. Sec. XXI. Every such sale, assignment or transfer of any of the 
liens created pi-operty or effects, of a general, (or special partner, wdio may have 
Pai^ners ?n hecome liable as a general partner,) made by such general or special part- 
contemplati'n ner, when insolvent, or in contemplation of insolvency, or after; or in con- 
of insolvency, templation of the insolvency of the partnership, with the intent of giving 
void. iQ ^Yiy creditor of his own, or of the partnership, a preference over 
creditors of the partnership, every judgment confessed, lien created, or 
security given, by any such partner, under the like circumstances, and with 
like intent, shall be void as against the creditors of the partnership. 
Special Part- 643. Sec. XXII. Any special partner who shall violate any provision of 
ner, liable as the two last preceding sections, or who shall concur in or assent to, any 
^Oeneral Part- ^hqIi violation by the partnership, or by any individual partner, shall be 
^^^* liable as a general partner. 
Special Part- 644. Sec. XXIII. In case of the insolvency or bankruptcy of the part- 
ner's claim nership, no special partner, shall under any circumstances, be allow'ed to 
postponed to ^.j^j^j^ ^^ ^ creditor, until the claims of all the other creditors of the part- 
other credi- 1 • 1 11 1 .• r. 1 ^ 
tors. nership, shall be satisned. 

JDissolution of 645. Sec. XXIV. Xo dissolution of such partnership, by the acts of 
Partnership, the parties, shall take place previous to the time specified in the certificate 
Lhow perfected. ^£ j^g renewal, until a notice of such intended dissolution, shall have been 
filed and recorded in the clerk's office in which the original certificate w^as 
recorded, and published, at least, once a month for four weeks, in a news- 
paper printed in each of the counties where the partnership has places of 
business ; but if no newspaper be printed in such counties, then the notice 
shall be published, for four weeks, in all the newspapers of the city of Mil- 
ledgeville ; which notice shall be signed by all the partners, or their rep- 
Demands resentatives : Provided^ that nothing herein contained shall be so con- 
-against Spec'l gtrned as to affect the collection of any demand against either of the 
ff Td b^ special partners, which may have been contracted previously to the com- 
this act. mencement of such special partnership. 

An Act to prohibit persons who are Partners in Trade, or any kind of 
Business, from inserting, continuing or using, in their Partnership style 
and name, the name of any individual not actually a Co-Partner ; and 
to prevent the collection of Debts due to any Partnership violating the 
provisions of this act ; and to punish those who may violate the same. — 
Approved Dec. 25, 1837. 
'J^^ame of per- 046. Sec. I. JBe it enacted^ That from and after the passage of this act, 
son not a j^ shall not be lawful for any persons who are partners in trade, or busi- 
to'^b'^^us T- ^^^^^ ^^ '"^"^ kind, to insert or use in their partnership-firm, style and name, 
but the name the name of any person not actually a co-partner with them, at the time 
of retiring his or her name, is so inserted or used; nor shall it be lawful to continue, 
Partner may jn any partnership-firm, style, and name, the name of any individual part- 
coll r ^"^ ^^^^'' ^^^^^' ^^ ^^' ^^^ shall have retired from \the^ partnership : Provided^ 
debts due the ^^^ ^^^ ^^^ shall not be so construed, as to prevent the collection of debts 
firm. due to any partnership, after its dissolution, (or after the retirement of any 
partner,) in tlie name previously used, in conformity with this act. 
Penalty for 647. Sec. II. Each and every individual violating the provisions of this 
violating this act, shall forfeit and pay the sum of one hundred dollars, for each and 
^^*' every day such name may be used ; to be sued for and recovered, by any 
person who may prosecute for the same. 



JUDICIARY.— PARTNERS AND PARTNERSHIPS. 213 

An Act to authorize Partners, or persons jointly interested, under certain cir- 
cumstances to execute Sealed Instruments. — Approved Dec. 29, 1838. 

648. Sec. I. 3e it enacted^ That in all suits, either in favor of or against Bonds execut- 
partners, or persons jointly interested, and in all cases when such partners, or^^ ^y ^^^ Co- 
persons jointly interested, shall in anywise become connected with any suit, Pg^^^^l^j^^^L 
or other matter, pending in any of the courts of this State, in any way what- interested, de- 
soever, wherein it shall become necessary for said partners, or persons jointly clared valid; 
interested, to give bond, it shall and naay be lawful for any one of said part- when given in 
ners, or persons jointly interested, to execute the same, by signing the names ega proceed- 
of all of said partners, or persons jointly interested ; and the same shall be 
obligatory and binding upon every of said partners, or persons \_^ointly\ inte- 
rested. Any law to the contrary notwithstanding. — \_See next Act?[ 

An Act declaratory of the force and validity of all Executions or Judgments, 
issued or entered up in behalf of Co-Partners, or against Co-Partners, 
where the Partnership style is used or set forth, and the Christian and Sur- 
names of the Oo-Partners omitted. And also, to declare the force of Bonds 
made to Partnerships using their common name or style. — Approved Dec. 
22, 1840. 

649. Sec. I. Be it enacted. That from and after the passage of this act, ^^^^™^^* ^^^ 
no judgment or execution shall be arrested or annulled, in any case where the ^^d ao^ainst 
judgment has been entered up, or the execution issued, in favor of co-partners. Copartnership 
or against co-partners, where the partnership style is used therein, instead of good, 
the christian and surnames of each person composing such partnership, as has 

been held to be necessary, by some of the judges of this State ; but such 
judgment or execution shall not, for such omission, on the part of any officer of 
the court, clerk, or justice of the peace, be affected or delayed, in anywise 
thereby. 

650. Sec. II. All bonds payable to two persons or more, doing business ^ mr^ner-^ 
under partnership name or style, shall be as obligatory and binding upon the ships, declar'd 
obligors of such bonds, where made with obligees, using their firm, name or obligatory 
style, as if such name composing such partnership, had been set forth. ^°d binding. 

Sec. III. All laws or decisions, militating against the plain and manifest 
intention of this act, be and the same are hereby repealed. 

An Act to enable Co- Partners who are Plaintiffs in the Courts of Law and 
Equity, in this State, to maintain and prosecute their suits in said Courts, in 
certain cases, without being compelled to adduce proof of their Co-Partner- 
ship. — Approved Dec. 2, 1841. 

'Whereas.^ it has been decided by one or more of the Judges of the Superior 
Courts, of this State, that in all cases sued in said court, in the name of a firm 
of Joint Traders, or Co-Partners, in any business, that proof of the Co-Partner- 
ship, as alleged in the PlaintifPs Declaration, is necessar^^ to be made, before 
said Plaintiffs are allowed to recover their demand ; for remedy whereof, and 
to prevent the delay and expense of adducing such proof — 

651. Sec. I. Be it e7iacted, That from and after the passage of this act, Tartnersliip 
it shall not be deemed or held necessary, in any of the courts of law or equity, ^^pj.Qyg(j ^ 
of this State, for a firm of joint-traders, or co-partners, in any business, 

trade, or profession, who are, or hereafter, may be plaintiff, in any cause 

pending in either of said courts, to prove their co-partnership: Provided^"^^^^^ ^^''^'^^^ 

nevertheless^ that nothing contained in this act shall prevent said courts, or ^ f^ ^^ 

any of them, from requiring such proof, in any case where the defendant or 

defendants, shall regularly, by plea in abatement, deny the existence of such 

firm or co-partnership as may be set forth by the plaintiffs in their bill, petition, 

declaration, or writ. 



214 JUDICIARY.— PARTNEES AND PARTNERSHIPS. 

Sec. II. All laws or parts of laws militating against this Act, be and the 
same are hereby repealed. 

Forms in Cases of Special Fartnership. 

STATE OF GEOEGIA, \ This is to certify and make known, that the 
Houston County. j undersigned agree to enter into partnership, on 
the terms and conditions hereafter expressed, to wit : The name of 
the firm under which said partnership is to be conducted, shall be Doe 
& Roe^ and the principal place of business Perry^ in said county. The 
general nature of the business intended to be transacted, is Mercantile. 
The names of the general partners in said partnership, are John Doe 
and Richard Roe^ who reside in said County, and Charles Smith, of the 
county of Bihh^ in said State, and Ransom Reese^ of the County of 
Chatham, in said State, who are special partners in said business. Said 
Charles Smith and Ransom Reese, the special partners in said business, 
each contribute the sum o^ jive thousand dollars to the common stock. 
The said partners are to commence business on the first day of June 
next, and are to continue doing business for the term of jive years, 
from that date next ensuing. This May 1, 1849. 
A 1 ^ A A A ' A ^ John Doe. 

AcknowJ edged and signed, -p -p 

by the several co-partners, I KICHARD KoE. 

before me, this May 1, 1849. ( ChaRLES SmITH. 

Edwin M. Claris, J. I. C. J EaNSOM KeESE. 

Clerk's Office, Superior Court. 

I, James Holdfast, clerk of the Superior Court, do hereby certify 
that the above certificate of partnership has been duly recorded in mv 
office. This May 1, 1859. 

Given under my official signature and seal of office, 

James Holdfast, C. S. C. [L. S.] 

Affidavit of General Partners. 

STATE OF GEORGIA, > Personally appeared before me, James Mack, 
Houston County. ^ one of the Justices of the Peace in and for said 
County, John Doe and Richard Roe, general partners, who being duly 
sworn, say that Charles Smith and Ransom Reese, special partners, 
have each contributed and paid in good faith, in cash, the sum of five 
thousand dollars, agreeably to their engagement in the above certifi- 
cate of partnership. 

Sworn to and subscribed ) John DoE. 

before me, this May 1, 1859. >• -n td 

James Mack, J P. ) iXICHARD KOE. 

Notice. 

John Doe and Richard Roe, as general partners, and Charles Smith 
and Ransom Reese, as special partners in Mercantile business, in the 
town of Perry, Houston County, under the firm-name of Doe and Roe^ 
hereby give notice of the formation of said partnership, on the follow- 
ing terms, to wit: each of the special partners pays in cash the sum of 
five thousand dollars into the common stock. Said partnership is to 



JUDICIAEY.— LIEN. 215 

commence business on the first day o^ June next, and to continue for 
the term of y^ye years, next ensuing. Certificate and affidavit regis- 
tered in the Clerk's Office of the Superior Court of Houston County; 
This May 1, 1859. 

John Doe, ) ^ ,^ p j 

Richard KoE, j ^^'^^^«^5- 

Charles Smith, ) oi • 7 r) » 
-o -n ^ opeciat Far s. 

Ransom Reese, f ^ 



LIEN. 

An Act to give to Masons and Carpenters an incumbrance for debts due 
on account of work done and materials furnished in Building or Repair- 
ing Houses, and the premises to which they may be attached ; and to 
repeal all laws on this subject, so far as relates to the counties of Rich- 
mond and Mcintosh, and in the Cities of Savannah, Macon and Colum- 
bus. — Approved Dec. 22, 1834. 

652. Sec. I. All debts which may hereafter become due to any mason Debts due to 
or carpenter in the counties of Richmond and Mcintosh, the cities of Sa- Masons and 
vannah, Macon and Columbus, in this State, \r)%ade general by the act of^'^f^'^^^Jf ?^ 
1837. — See 661,] for work done or materials furnished for building or re- ty than any 
pairing any house, (in all cases, when said mason or carpenter shall not other incum 
have taken personal security for said debts,) shall constitute and be an in- hrance, unless 
cumbrance on such house and the premises to which it shall be attached, P^^^on^^ ^^cu. 
superior in dignity to and of higher claim than any other incumbrance 
whatever, no matter of what nature or sort the same may be, and without 

regard to the date of such other incumbrance. 

653. Sec. II. Every mason or carpenter building or repairing any claim to be 
house, shall within three months from the time the same is completed, recorded in 
cause to be recorded in the clerk's office of the counties herein-before- ^^^^^ months 
named, and the counties in which the cities of Savannah, Macon and Co- 
lumbus, severally lie, (where such building shall be erected or repaired,) 

his claim thereon; which said claim shall be in substance as follows : "A Form of the 
B, (a mason or carpenter, as the case may be,) claims an incumbrance on Claim, 
the house and premises on which it is erected, of C D, adjoining the lots 
or lands of E F and G H, for the building (or repairing, as the case may 
be,) of said house." For which service he shall pay said clerk fifty cents. Clerk's Fee. 
And on the failure so to record said claim, the said house and premises shall Failing to re 
stand discharged from said incumbrance, so far as respects any older lien cord Claim, 
on, or any subsequent bond fide sale or assignment of the same. premises re 

654. Sec III. If any mason or carpenter shall not build or repair any ^qj-j^ muQi 
house, by him undertaken to be built or repaired, according to his con- be performed 
tract, the debt or demand for building or repairing the same, shall consti- according to 
tute no incumbrance on the house so built or repaired, or the premises. Contract. 

655. Sec IV. Any mason or carpenter having an incumbrance on aguitwithinl2 
house and premises for the debt due for the building or repairing of the months, 
same, shall within twelve months from the time said debt shall become 

due, institute a suit for the recovery of such debt, in a court having juris- 
diction of the cause ; and shall in his declaration, describe the house and The Delara- 
premises on which the work was done. And on the trial of said cause, tion. 
the jury shall find the amount due, according to the evidence, and shall y^^'*^^^* ^^^^^ 
moreover, find specially that the same shall be levied on the property ^Q- li^^ f^^^^ 



216 JUDICIAEY.— LIEN. 

scribed and proved, in preference to any other claim whatsoever : Pro- 
vided^ the claim of the plaintiff shall have been recorded according to law. 
Judgment and And the com't shall award judgment and execution accordingly. And on 
fi-fa- the failure so to sue on said debt and prove the same to judgment, the 
r n dis^ ' ^^^^ ^^^* ^"s^ be placed on the same footing of any other simple contract 
charged. ^^ claim, and the said house and premises shall stand discharged from the 
incumbrance created by this act. 
Delivery of 656. Sec. V. On the building or repairing of any house, the same shall 
possession i^e delivered over to the possession and enjoyment of the person for whom 
does not af- ^^ same was built or repaired, without affecting the lien created by this 

act. 
Premises be- 657. Sec. VI. Whenever any house and lot, or house and lands, sub- 
ing sold by ject to the incumbrance herein created, shall be seized and sold by author- 
^r^^^ tt °^h^^' ^^^ ^^ ^^^ process or decree of any court in this State, the same shall pass 
to the pro- ^^ ^^ purchaser free from such incumbrance, which incumbrance shall 
ceeds. attach to the proceeds of the sale, in the hands of the officer making it, on 
Notice must a notice, as in cases of claim to money raised under execution, which no- 
be given. |.jgg^ ^V\^h the money, shall be returned to the court by the said officer. 
Issue to be 658. Sec. VII. Whenever a claim of money, made under the foregoing 
madeup and section, shall be disputed by either the plaintiff or defendant in the execu- 
tried. ^Jqjj^ process or decree on which the money was raised, the court to which 
the return is made shall retain the amount thereof in the hands of the 
clerk, and order an issue to be made up to try the validity of the claim. 
Claimant lia- XJpon the trial of which issue, should it be determined against the claim- 
affes'^^Inter" ^^^*' ^^ ^"^ be adjudged to pay damages to the person entitled to the 
est and Cost, money, not exceeding twenty per centum, as the jury may assess, with 

interest from the date of the notice to retain, and costs. 
Persons hold- 559^ '^^q^ VIII. Any person or persons holding a lien on the premises on 
to^ive notice" ^^^*^^ ^^^' building is about to be erected or repaired, may give notice to the 
After Notice, mason or carpenter about to build or repair a house on said premises, before 
his lien to the said building or repairs shall be commenced, not to proceed therewith, 
have prece- ^^d if the said mason or carpenter, after having received such notice, shall 
ence. proceed with said building or repairs, the said mason or carpenter shall hold 
his lien on the said house and premises, subject to the incumbrance of the per- 
son thus notifying him. 
^^^ ^'^ favor 650. Sec. IX. All laws giving master-masons and carpenters, or masons' 
^ Caroenters ^"^ \pt\ carpenters' liens or incumbrances on houses erected or repaired, or ma- 
heretofore, re- ^^^^^^^ found by them, be and the same are hereby repealed : Provided how- 
pealed. ever^ that liens and incumbrances created or attached by any of the aforesaid 
laws, shall be held good and valid in law and equity. 



Notice of Lien. 

STATE OF GEORGIA, \ To John L. Hahtead, Sheriff of said County. 
Houston County, j" You are hereby notified and required to retain in 
your hands the Money raised from the sale of the House and Lot in 
the town of Perry ; sold this day, as the property oi John Smith, as I 
have a lien (recorded, according to law,) on said Money for Buildings 
heretofore erected on said premises. This May 1, 1859. 

Thomas W. Gurr, Carpenter. 



JUDICIARY.— LIEN. 217 

Notice to Carpenter about to Build. 

STATE OF GEORGIA, \ Tb Thomas W. Gurr, Carpenter. 

Houston County. j You are hereby notified and informed that I 
have a Lien on lot numher four, letter A, in the town of Perry, in said 
County, (the property of John Smith,) for the sum of five hundred Dol- 
lars, (recorded, according to law.) This notice is given in conformity 
with law, as I understand that you are about to Build a House on said 
lot for said John Smith. May 1, 1859. 

James Mashburn, Mason. 

An Act to extend to the several counties in this State, the provisions of an 
act, entitled "an act to give Masons and Carpenters an incumbrance for 
debts due on account of work done, and materials furnished, in Building or 
Repairing Houses, on such Houses and the premises to which they may he 
attached. And to repeal all laws on this subject, so far as relates to the 
counties of Richmond and Mcintosh, and in the Cities of Savannah, Macon 
and Columbus," passed on the 22d Dec, 1834. — Approved Dec. 2S^ 1837, 

661. Sec. I. Be it enacted^ That all the provisions of an act entitled "An ^^^ Qf 1334 
act to give masons and carpenters an incumbrance for debts due on account made general, 
of work done, and materials furnished, in building or repairing houses, on such 

houses and the premises to which they may be attached. And to repeal all 
laws on this subject, so far as relates to the counties of Richmond and Mcin- 
tosh, and in the cities of Savannah, Macon and Columbus," passed on the 22d 
Dec, 1834, be and the same are hereby extended to all the counties of this 
State ; and that all laws militating against this act, be and they are hereby 
repealed. 

An Act to give to all persons employed on Steam-boats and other Water-crafts 
on the Cattahoochee, Alatamaha and Ocmulgee Rivers, a lien on said Steam^ 
boats or Water-crafts, for his, her or their Wages, and for Wood and Pro- 
visions furnished ; and to point out and facilitate the mode of the collection 
of the same. — Approved Dec. 7, 1841. 

662. Sec. I. Be it enacted., That from and immediately after the passage Lien on 
of this act, all persons employed, either as captain, pilot, engineer, first or Steam-b(^fs, 
second mate, fire-man, deck-hand, or in any other capacity whatsoever, on all ^^g' ^^ ^^[ 
steam-boats and other water-craft, engaged in the navigation of the Chatta- tain Kivers. 
hoochee, Alatamaha and Ocmulgee rivers, \extended to Savannah and Flint 
rivers— see act o/'1842 and act o/'1845,] for any debt, dues, wages or de- 
mands, that he, she or they may and shall have against the owner or owners 

of said steam-boat or other water-craft, for personal services done, rendered or 
performed on board the same ; and for wood and provisions, [shall have] an 
exclusive lien on said steam-boat or other water-craft, against the owner or 
owners thereof, superior in dignity to and of higher claim than all other 
incumbrances, no matter of what nature or sort the same may be : Drovided^To be sued for 
he, she or they shall demand and prosecute the collection of the same as here-in 12 months, 
inafter to be provided for, at any time within twelve months after the same 
shall become due and payable. 

663. Sec. II. Whenever any captain, pilot, engineer, first or second mate, How to pro- 
fire-man, deck-hand, or any other person employed on any steam-boat or other ceed. 
water-craft, navigating and running on the Chattahoochee river, [see 665,] shall 

have any claim or demands against the owner or owners of said steam-boat or 
welter- craft for services rendered on board the same, and shall be desirous of 
collecting the same, upon the said debt becoming due, and refusal to pay the 



218 JUDICIARY— LIEN. 

Application same upon demand made, he, she or they [slave or free person of color / see 
how to be 668,] may, upon application to any judge of the superior court, or justice of 
made. ^j^^ inferior court, in any county in which said steam-boat or water-craft may 
then lie, upon the same arriving at the landing, port or place of destination to 
AflSdavit. which the same has been freighted, make affidavit before him of the amount 
due him, her or them, for any labor or services by him, her or fhem, done and 
performed on board of any steam-boat or other water-craft, and specify the 
Order of the name thereof. Whereupon, the said judge, or justice of the inferior court, 
Judge or Jus- shall grant an order to the clerks of their respective courts, as the case may 
tice. i3e, requiring said clerk to enter up judgment upon said affidavit, in favor 
Exe^^Uon ^^ ^^^^ applicant for the amount sworn to be due [and costs ; see 6tl.] And 
how issued, it shall be the duty of said clerk to issue, instanter, an execution therefor, 
against the owner or owners of said steam-boat or other water-craft ; and also 
against said steam-boat or other water-craft, to be directed to the sheriff of said 
Levy. county, whose duty it shall be, forthwith, to levy said execution upon said steam- 
Advertisem'nt boat or other water-craft, and advertise and sell the same, under the same rules 
and Sale, and regulations as govern sheriffs' sales in other cases : Provided^ the said de- 
Sums under mand shall exceed the sum of thirty [fifty'] dollars. And when the said sum 
$30 how shall be for thirty [fifty'] dollars or under, then and in that case, the application 
recovered. ^\^q\\ be made to one of the justices of the peace in the district in which said 
steam-boat or other water-craft may then be, as aforesaid, the same being at the 
J. of the P. landing, port or place to which the same was last freighted. And the said 
must issue justice of the peace, upon the filing of the said affidavit, shall issue execution 
J^ixecution. thereon, instanter, for the amount sworn to be due, against said steam-boat or 
Constable other water-craft, and the owner or owners thereof, and deliver the same to 
^^^^.^^^' any lawful constable of the district aforesaid, whose duty it shall be, forthwith, 
return to the ^^ ^^^J said execution on said steam-boat or other water-craft, and return the 
Sheriff. same to the sheriff of the county in which the same may be, whose duty it 
Defence how shall be to advertise and sell, as in other cases. 

made. 664. Sec. III. Whenever any owner or other person having control 

of any steam-boat or other water-craft, against which any proceedings may 

be had under the foregoing provisions of this act, and may be desirous of 

contesting said claim or demand, on the ground that the same or some 

Affidavit must part thereof is not due and owing, he, she or they shall file his, her or 

be filed. their affidavit, denying that the whole or some part thereof, was due, at 

Amount due the time the applicant files [filed] his affidavit, as provided for in the 

must be paid, second section of this act. But when only a part is denied on oath, the 

amount admitted to be due shall be paid before the officer levying said exe- 

Bond and Se- cution shall deliver up the property levied on, as herein-after specified ; 

[curity given, and that after the filing of the affidavit, as above required in this section, 

and giving bond and good security, residing in the county where such 

proceedings may be had, to the plaintiffs, in double the amount claimed, 

conditioned for the [payment of the] QYeni\x.2X condemnation money and 

Affidavit and all costs incurred thereon. And whenever said affidavit and bond shall be 

Bond return'd. filed, as aforesaid, the levying officer shall deliver uj) the property levied 

Issue. on, and return the affidavit and bond to the next court in said county to 

which said execution may have been returnable ; upon wdiich an issue shall 

Continuance, be made up and formed, and the truth of the same shall be tried by a jury 

of said courts, respectively, at the first term of said court, unless good 

Appeal allow- cause be shown for a continuance ; but the same shall be continued only 

ed. for one term, by each party. And from the verdict rendered, in such 

Extended to case, either party shall have the power or privilege to enter an appeal. 

Alatamaha 665. Sec. IV. All the provisions of this act, shall apply to all steam- 

and Ocmulgee]|3Qr^ts and water-crafts navigating the Alatamaha and Ocmulgee rivers; 

and that all persons who furnish wood and provisions to said steam-boats 



JUDICIARY.— LIEN. 219 

or other water-craft, shall have the same remedies as is herein-before pro- 
vided. 

Sec. y. Al] laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to amend an act entitled " an act to give to all persons employed 
on Steam-Boats and other Water-Crafts on the Chattahoochee, Alata- 
maha and Ocmulgee Rivers, a Lien on said Steam-Boats or Water- 
Crafts, for his, her or their Wages, and for Wood and Provisions fur- 
nished. And to point out and facilitate the mode of the collection of 
the same," assented to December 11th, 1841, so as to include Savannah 
River within the provisions of the same. And for other purposes. — 
Approved Dec. 27, 1842. 

666. Sec. I. Be it enacted., That from and after the passage of this act, p.^^^^°°f^,. 
the above-recited act, be and the same shall be so amended as to include i^^the^ct of 
the Savannah River within the provisions of the above-recited act. 184i. 

667. Sec. II. All the provisions of the act, of which this act is an Extended to 
amendment, shall apply to all steam saw-mills, at or near any of the water- Steam Mills, 
courses in this State , in behalf of all and every person or persons who 

may be employed by the owner or owners, agents or superintendents, for 
services rendered, or for timber or fire-wood of any description, provisions 
or supplies, delivered to any such steam saw-mill. And that the same 
course shall be pursued for the recovery of any such claim or claims, as is sta- 
ted in the second or [a^^t?] third [sections] of the act of which the present act 
is an amendment : Provided., the demand for such claim be first made to Dgn^and must 
the owner or owners, agents or any person having control of any steam grst be made 
saw-mill against which any proceedings may be had under the provisions of Owner, etc. 
of the said act. 

Sec. III. All mill-wrights and builders of gold machines, in this State, Millwrights 
shall be entitled to the same lien, and shall enforce said lien in the same and Builders 
way as is provided by this act, and the one to which this is amendatory. ®^ ^. ' 

Sec. IV. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

An Act to amend an act passed in eighteen hundred and forty-one, to 
give to all persons employed on Steam-Boats and other Crafts on 
the Chattahoochee, Alatamaha and Ocmulgee Rivers, a Lien on said 
Steam-Boats or Water-Crafts, for his, her or their Wages, and for 
Wood and Provisions furnished. And to point out and facilitate the 
mode of the collection of the same, so far as to extend the provisions 
of the same. And to include Flint River therein. — Approved Dec. 26, 
1845. 

668. Sec. I. De it enacted.. That from and immediately after the pass- Extended to 
ing of this act, that all the provisions of the above-recited act, be and the Flint River, 
same are hereby extended to all persons employed on steam-boats and 

other water-crafts on Flint River : And whereas., it frequently happens that 
persons employed on said steam-boats and other water-crafts on said 
Chattahoochee, Alatamaha, Ocmulgee and Flint rivers, are negroes and 
free persons of color : De it therefore enacted., That whenever any negro. Services ren- 
being a slave or free person of color, shall be employed as pilot, engineer, ^^^^^y^^^^^ 
first or second mate, fire-man, deck-hand, or in any other capacity whatso- g^^ oTcolm:' 
ever, on all steam-boats and other water-crafts engaged in the navigation how recover'd 
of said rivers, to wit — the Chattahoochee, Alatamaha, Ocmulgee and 
Flint rivers, that then and in all such cases, the owner, master, agent, at- 
torney-at-law or attorney-in-fact of said negro, slave or free person of color, 



220 JUDICIAEY.— LIEN. 

shall have the like remedies for wages or demands which he, she or they 
may and shall have against the owner or owners of said steam-boats or 
other water-crafts, for the services of said negro, slave or free person of 
color, as are given to all other persons whose employments are recited in 
said act. 

Sec. II. [Repealing section.] 

An Act to amend an act entitled " an act to give to all persons employed 
on Steam-Boats and other Water-Crafts on the Chattahoochee, Alata- 
maha and Ocmulgee Rivers, a Lien on said Steam-Boats or Water- 
Crafts, for his, her or their Wages, and for Wood and Provisions furn- 
ished. And to point out and facilitate the mode of the collection of 
the same," assented to Dec. 11th, 1841, so as to include all Liens on per- 
sonal property, under certain regulations. And for other purposes. — 
Approved Dec. 24, 1847. 

'Whereas., in many cases, persons having liens upon personal property^ 
created by the common-law or the statute-law of force in this State, have 
no power to sell the same, whereby manifest injustice results to such per- 
sons, and frequently the delay works injury to both Debtor and Creditor ; 
for remedy whereof — 
Summary Pro- 669. Sec. I. Be it enacted., That from and immediately after the pas- 
cess to enforce g^ge of this act, the above-recited act shall be so amended as to authorize 
personal OTop- ^^^^ person or persons, who by the principles of the common-law, or the 
erty. statute-law of force in this State, or which may be hereafter enacted ; 
have, or shall have a lien on personal property within the limits of this 
State, to pursue the course pointed out by said above-recited act ; by ap- 
plying, in proper person, or by attorney or agent, to one of the justices of 
the peace of the district in which the said personal property may be at 
the time of such application ; (where the debt does not exceed thirty 
\_fifty\ dollars ;) or to the judge of the superior, or one of the justices of 
the inferior court of the county where the said personal property may be, 
at the time of such application, (where the sum sworn to shall not., [the 
word '•^nof'' is emdeJitly a mistake^ exceed thirty [fifty\ dollars,) and by 
Affidavit must^^^^^^ affidavit before him of the amount due him, her or them, and the 
be made, nature of the lien, and how the same has occurred, and upon what personal 
property the said lien has attached ; and thereupon, all the provisions of 
the said recited act, of which this act is an amendment, shall apply. And 
the same proceedings shall be had, as provided for by said recited act, so 
Must be pros- far as the same can be applicable hereto ; Provided., that he, she or they 
ecuted within shall demand and prosecute the collection of the same, as provided for in 
12 months, gg^j^]^ recited act, at any time within twelve months after the same shall be- 
Demand must come due and payable : And provided also., that no such proceeding shall 
first be made, "be had until the demand for the payment of such lien shall first be made 
upon the owner or owners, or their agents or attorneys-in-fact, if they or 
any of them reside within the county where such proceedings shall be 
had, and refusal to pay the same, shall have been made. 
Act of 1841 670. Sec. II. ISTothing herein contained shall be construed to repeal so 
not affected in j^^^^(>|-j Qf gg^j^j recited act, as requires the affidavit to be made, in the cases 
tion by this' ^P^cified in said act, or any act heretofore passed amendatory of the same, 
act. before a judge of the superior or justice of the inferior court, or one of 
the justices of the peace of the district in which said steam-boat or other 
water-craft may then lie, upon the same arriving at the landing, port or 
place of destination to which the same has been freighted ; but that the 
said affidavit, shall in the cases provided for by said recited act, or any 



JUDICIARY.— LIEN. 221 

act heretofore passed, amendatory of the same, continue to be made as 
provided for by said act. 

671. Sec. III. In all cases, both under said recited act, and all acts Judgment for 
amendatory thereof, heretofore passed, and in all cases provided for by ^°^J®^°^ ■'^" 
this act, it shall be the duty of the judge or justice before whom the affi- 
davit shall be made, to direct the clerk to enter up judgment for the costs 

of such proceedings, and any interest that may be due or may become 

due, as well at for the principal debt, as provided for in said recited act. 

And it shall be the duty of the said clerk, or the justice of the peace. Execution to 

(when proceedings are had before a justice,) to issue execution for such be issued. 

costs and interest. 

672. Sec. TV. In no case shall the said execution so issued be levied on Levy, 
any other property except such as shall be subject to such lien. And it Owner may 
shall be lawful for the owner, or other person claiming the said property, or dispute Lien, 
his agent or attorney, not only to contest such claim or demand, on the 

ground that the same or some part thereof is not due and owing ; as pro- 
vided for in the third section of said recited act, but also, to contest the 
existence of any lien therein, by making affidavit denying the existence of 
such lien, and giving bond as provided for in said third section of said 
act ; and such proceedings shall thereupon be had as are directed in said 
third section of said recited act. 

Sec. Y. All laws and parts of laws militating against this act, be and 
the same are hereby repealed. 

Aisr Act to amend an act entitled "an act to give all persons employed on 
Steam-Boats and other Water-Crafts on the Chattahoochee, Alatamaha 
and Ocmulgee Rivers, a Lien on said Steam-Boats or Water-Crafts for 
his, her or their Wages, and for Wood and Provisions furnished. And 
to point out and facilitate the mode of the collection of the same," as- 
sented to December 7th, 1841, so as to extend the provisions of the 
same, and in favor of Machinists. — Approved Jan. 19, 1852. 

673. Sec. I. J^e it enacted^ That all machinists in this State, who may Machinists en- 
furnish any kind of machinery, or who may repair the same, which may titled to lien, 
be put up or used in any mill building, steam-boat or vessel, in any county, 

or in any of the rivers or waters of this State, shall be entitled to the same 
lien and may enforce it in the same way as is provided in the act of the 
General Assembly above recited, in the title of this act. — [See next act.J 

An Act amendatory of "an act to give to Masons and Carpenters in incum- Act of 1841, 
brance for debts due on account of work done and materials furnished in extended to 
Building or Repairing Houses, and the premises to which they may be Machmists. 
attached ; and to repeal all laws on this subject, so far as relates to the 
counties of Richmond and Mcintosh, and in the Cities of Savannah, Macon 
and Columbus," assented to the 22d day of December, 1834. And of "an 
act to extend to the several counties of this State, the provisions of said 
act," assented to the 28th day of December, 1837. And to extend the 
provisions of said act [acts'] to Machinists who shall furnish or put up, in 
any County in this State, Steam-Mills or other Machinery, or who may 
repair the same. — A2Jproved Feb. 18, 1854. 

674. Sec. I. Be it enacted., That from and after the passage of this act, Acts of 1834 
any machinist who may furnish or put up, in any county in this State, any ^■^^^ ^^^*^ ^'^^ 
steam-mill, or other machinery, or who may repair the same, shall be entitled ]\xacMnibt^ 
to the same lien on such machinery, and the premises to which the same may 

be attached ; and may enforce such lien in the same manner and with like 
benefits, privileges and restrictions, as is by said acts extended to masons and 
carpenters. 



222 JUDICIARY.— CORPORATION, ETC. 



CORPORATION, ETC. 

An Act to provide for the service of Original Process upon Corporations. — 

Approved Dec. 27, 1845. 

Service of 675. Se it enacted^ That from and after the passing of this act, service of 

Original Pro- ^,11 bills, subpoenas, writs, attachments and othftr original process necessary to 

cess on L/or- ^^ commencement of any suit against any corporation, in any court of law or 

made. equity in this State, may be executed by leaving the same at the place of 

transacting the usual and ordinary public business of said corporation, if any 

such place of business there shall be, within the jurisdiction of the court in 

which said suit may or shall be commenced. And if any corporation shall 

not have any such place for the transaction of its usual and ordinary public 

business, then by leaving the same at its last notorious place of transacting its 

said business, and publishing a copy of said subpoena, attachment, or other 

original process, in one of the public gazettes of this State, for the space of 

Copy News- three months. And a copy of the news-paper containing said publication shall 

paper evid'ce. be received in all the courts of this State, as sufficient evidence of such service. 

An Act to facilitate the Collection of Debts against Incorporations and the 
Stock-holders thereof. — Approved Dec. 10, 1841. 
W'kly Notice 676. Sec. I. Be it enacted^ That it shall and may be lawful for plaintiffs 
for four weeks or complainants, within one month after the institution of any suit or suits at 
or a suit ag st ig^^ or equity, against any incorporation, joint-stock or manufacturing com- 
shall be Notice P'^^^J' ^^ publish once a week for four successive weeks, in some public gazette 
to each of this State, notice of the commencement of said suit or suits, and said pub- 
Stockholder, lication shall operate as notice to each stock-holder in said incorporation, joint- 
stock, or manufacturing company, for the purposes herein-after mentioned. 
When Judg- 677. Sec. II. When notice has been given as aforesaid, and a judgment 
mentisren- qj. ^lecree has been obtained against any incorporation, joint-stock, or manu- 
tbn shaflTs^ facturing company, where the individual, or private property of the stock- 
sue first ag'st holders is bound for the payment of the whole or any part of the debts of said 
the Company, company, execution shall first issue against the goods and chattels, lands and 
and upon re- tenements of said company ; and upon the return thereof by the proper officer, 
h^^ Ya ^^' with the entry "no corporate property to be found," endorsed thereon, that 
against indi- ^^^^ ^^^ ^^ ^^^^ case, it shall be the duty of the clerk, or other officer, upon 
vidual Stock- application of the plaintiff, his agent or attorney, accompanied with a certifi- 
holders. cate, as herein-after directed to be obtained, forthwith to issue an execution 
against each of the said stock-holders, if required, for their ratable part of the 
said debt and costs of suit, in proportion to their respective shares, or other 
liabilities under their charter of incorporation. 
List of Stock- 678. Sec. III. It shall be the duty of the president, or presiding officer, 
holders must by whatever name he may be designated, upon application of the plaintiff, his 
be furnished, ^gent or attorney, forthwith to give a certificate under oath of the names of 
the stock-holders in said company, and the number of shares owned by each, 
at the time of the rendition of judgment against said company. 
President fail- 679. Sec. IV. If upon application by the plaintiff, his agent or attorney, 
ing to furnish to the president or presiding officer as aforesaid, he shall refuse to give a cer- 
list,^ Execut'n tificate as aforesaid, or shall abscond or conceal himself to avoid giving the 
^ ^^Mm ^^ ^ same, and oath being made by the plaintiff, his agent or attorney, of said re- 
fusal, the clerk, or other officer, is hereby required to issue execution against 
said president or presiding officer as aforesaid, for the amount of principal, 
interest and cost of said suit. 

680. Sec V. If the president, directors, or other officers of said company 



JUDICIARY.— CORPOEATION, ETC. 223 

shall fail or refuse to defend said suit or suits, brought as aforesaid, any one Stockholder 

or more of the stock-holders of said company, shall be permitted by the court, may plead and 

before which said suit or suits is pending, to plead to and defend the same, in ^^^^^^ when 

. . . (Jomuanv re- 

as full and ample a manner as said company in its corporate character, could fuses. 

plead to and defend the same. 

681. Sec. VI. The defendant or defendants in execution, under the pro- Defendant 
visions of this act, shall be entitled to an illegality, under the same rules, entitled to 
regulations and restrictions, as defendants are in other cases under the exist- 

ing laws of this State. 

682. Sec. VII. This statute shall be understood and construed as cumu- How this 
lative of the common-law. And that all laws and parts of laws militating statute is to 
against the same, and this construction thereof, be and the same are hereby ^^ construed, 
repealed. 

An Act to point out the manner of creating certain Corporations ; to define 
their rights and privileges, and to provide a mode of changing the names 
of individuals. — Approved Dec. 28, 1843. 

683. Sec. I. Be it enacted, That when the persons interested shall Persons desir- 
desire to have any Church, Camp-Ground, Academy, School, volunteer j ^^^ ^ . 
Military Company, Manufacturing Company, Trading Company, Ice Com- mygt Petition 
pany. Fire Company, Theatre Company, or Hotel Company, Bridge and the Court. 
Ferry Company incorporated, [see 688,] they shall petition in writing, the 

superior or inferior court of the county where such association may have 
been formed, or may desire to transact business, for that purpose, setting 
forth the object of their association and the privilege they desire to exer- 
cise, together with the name and style by which they desire to be incorpo- 
rated, and said court shall pass a rule or order, directing said petition to 
be entered of record on the minutes of said court. 

684. Sec. II. When such rule or order is passed and said petition is Powers of 
entered of record, the said companies or associations shall have power ^^^^ Corpora- 
respectively, under and by the name designated m their petition, to have ^^^^' 
and use a common seal ; to contract and be contracted with ; to sue and be 

sued ; to answer and be answered unto, in any court of law or equity ; to 
appoint such officers as they may deem necessary, and to make such rules 
and regulations as they may think proper for their own government, not ' 

contrary to the laws of this State. But shall make no contracts, or pur- 
chase, or hold any property of any kind, except such as may be absolutely 
necessary to carry into effect the object of their incorporation. (ISTothing Banking and 
hei'ein contained shall be so construed as to confer banking or insurance Insurance 
privileges on any company or association herein enumerated.) And the ^^ vh^f^rf 
individual members of such manufacturing, trading, theatre, ice and hotel stock-holders 
companies, shall be bound for the eventual payment of all the contracts of liable as Part- 
said companies, as in case of partnership. ners. 

685. Sec. III. ISTo company or association shall be incorporated under 14 years 
this act, for a longer period than fourteen years, but the same may be pe^od of In- 
renewed whenever necessary, according to the provisions of the first sec- ^°^P^^^ ^°^- 
tion^of this act. 

686. Sec. IY. The said superior or inferior court shall have power and Power to 
authority, uj^on petition in writing, to change the name of any individuals, change Names 
by rule or order, for that purpose : Provided, such individual shall havcp^f.. ^*^°5" 
resided in the county where his or her application is made, for at least one of application 
year previous thereto, and shall give at least three months' prior notice in must be 
one of the nearest news-papers, and at the court-house door of said county, given. 

of the intended application. — \_See title '"'•Name, how changed, etc.''^] 

687. Sec. V. For enterinc^ any of said petitions and orders on the Fees of the 

Clerk. 



224 JUDICIARY.—CORPOEATION, ETC. 

minutes of the court, and furnishing a certified copy thereof, the clerk shall 
be entitled to a fee of five dollars, except in cases of application by indi- 
viduals, for the change of names, in which case the clerk of said court shall 
be entitled to the fee of one dollar ; and that such certified copy shall be 
Certified copy evidence of the matters therein stated, in any court of law or equitv in 
evidence, ^i^i^ s^^te. ..... 

Sec. VI. All laws or parts of laws militating against this act, be and 
the same are hereby repealed. 

Petition for Incorporation. 

STATE OF GEORGIA, | 

Houston County. ( To ^^^^ Superior Court of said County. 

The Petition of the undersigned, sboweth, that they (and their 
successors,) desire to be Incorporated under the name and style of 
''^The Ti'usteesof the Perry- Circuit Camp-Oround^''^ which Camp- Ground 
is located in the County aforesaid. The object of your Petitioners, is 
to protect s^id Camp- Ground from intrusion and injury; for which 
purpose your Petitioners pray the passing of an Order, conferring 
upon Petitioners, and their successors, the privileges applicable to 
their Incorporation, enumerated in the second section of an act of 
eighteen hundred and forty-three, entitled "an act to point out the 
manner of creating certain Corporations ; to define their rights and 
privileges, and to provide a mode of changing the ISTames of Indi- 
viduals." This April 1, 1859. John Doe, 

ElCHARD EoE, etc. 

Order of Incorporatio7i, 

STATE OF GEORGIA, ) ^ . ^ a -i m .r.^r^ 

Houston County. \ Superior Court, April Term, 1859. 

Upon the Petition of John Doe^ Richard Roe^ etc., praying to be 
Incorporated as Trustees of the Per?^- Circuit Camp- Ground, in said 
County; it is hereby ordered that said Petition be entered of record; 
that Joh7i Doe, Richard Roe, and their successors, be and they are 
hereby Incorporated under the name and style of " The Trustees of the 
Perry-Circuit Camp- Ground,^'' with authority and power to carry the 
object of their Incorporation, (to wit, the protection of said Camp- 
Ground, from injury and intrusion,) into full and complete effect. 
And said Corporators, and their successors, are hereby clothed with 
all the power and authority applicable to their Incorporation, enumer- 
ated in the second section of an act of the Legislature of eighteen 
hundred and forty -three, entitled "an act to point out the manner 
of creating certain Corporations ; to define their rights and privi- 
leges; and to provide a mode of changing the Names of individuals." 

A true extract from the Minutes. 

[L. S.] William H. Miller, Clerh 

An Act to extend the provisions of the act passed on the twenty-eighth day 

of Dec. 1843, entitled *'an act to point out the manner of creating certain 

Corporations ; to define their rights and privileges, and to provide a mode 

of changing the Names of individuals. — Approved Dec. 29, 1845. 

Act of 1843 688. Sec. \. Be it enacted, That the provisions of said act, so far as the 

extended to same relates to corporations, be and the same are hereby extended to all 

all Associa- associations and companies whatsoever, except banks and insurance companies ; 



JUDICIART.— COEPORATION, ETC. 225 

and that the individual members of such associations and companies, when Companies ex 
incorporated under said act, or under this act, shall be liable as therein cept Banks 
specified, for the contracts of said associations or companies, whenever any ^",^ Insurance 
such associations or companies are incorporated for the purpose of trading or ^^^iP^'^^^s. 
transacting business for profit. 

An Act to authorize parties Complainant, either in law or equity, to perfect 
service of writs against Corporations, under certain circumstances therein 
named. — Approved March 4, 1856. 

689. Sec. 1. B^ it enacted^ That from and after the passage of this act, How services 
where any body corporate, created or hereafter to be created by the laws of of Writs may 
this State, shall have no public place of doing business, or shall have no individual ^^ perfected 
in office upon whom service of writs may be perfected, within the knowledge of QQ^ypJ5.^^^.j^^^g 
any party complainant, either in law or in equity, then and in that event, the 

said complainant may make an aflidavit, that the corporation has no public 
place of doing business, or has no individual in office, upon whom service 
of writs may be perfected, [within] the knowledge of said complainant. 
And such affidavit being filed in the clerk's office of the court to which the 
said writ may be made returnable, the clerk of the said court shall advertise 
a citation (to the said defendants, to be and appear at the said court, to answer 
the complaint,) once a week for three weeks prior to the court to which the 
said complaint may be returnable, in some news-paper located in the county 
in which the suit is brought. If no news-paper is published therein, then in 
one nearest thereto. And such advertisement shall be deemed and held a 
service upon such corporation, for all purposes either in law or equity. Any 
law, custom, or usage, to the contrary notwithstanding. 

Complainanfs Affidavit. 

STATE OF GEORGIA, ) jn person appeared before the undersigned, a 
Houston County. j" Justice of the Peace^ in and for said County, John 
Doe^ who being duly sworn, saith, that he hath instituted his action of 
Assumpsit^ in the Superior Court of said County, against the ^^ Houston 
Manufacturing Cor)%yany^^^ a Corporation created by act of the Legis- 
lature ; that said Corporation has no public place of doing business, 
and has no individuals in office upon whom service of writs may be 
perfected, in said State, within the knowledge of deponent. 

Sworn to and subscribed, ] 
before me, this Uay 1, 1859. >- JOHN DOE. 

James Mack, J. P. ) 

Citation hy the Clerk. 

STATE OF GEORGIA, ) The '' Houston Manufacturing Company^'''' their 
Houston County. f Agents and Attorneys, are hereby notified to be 
and appear at the next term of the Superior Court of said County, to 
be held on the fourth Monday in October next, to answer the complaint 
o^ John Hoe, in an action of Assumpsit, returnable to said Court. This 
May 1, 1859. 

William H. Miller, OlerJc. 

An Act to facilitate and expedite the collection of debts due by Corporations, 
Joint-Stock Companies and Associations, in cases where the Stock-holders 
and members are liable for the same. — Approved March 5, 1856. 

690. Sec. 1. Be it enacted, That from and after the passage of this act, 

15 



226 JUDICIARY.— CORPORATION, ETC. 

Plaintiff not on the trial of any action or suit which is now pending, or may be hereafter 
required to instituted either at law or in equity, for the recovery of any bond, bill, note, 
prove execu- ^^ other written contract, purporting to have been executed by any corporation, 
etc. unless 'joint-stock company or association, against all or any of the members thereof; 
the plea of or when such contract is introduced as evidence in the same, it shall not be 
no7i est factum xiQCQssary for the plaintiff in such suits, nor shall he be required to prove the 
Defiled. execution of such bond, bill, note, or other contract, unless the defendant or 
defendants shall first deny, under oath, at the first term after such suit is 
commenced, the due execution of the same as alleged by the plaintiff. And 
in case the defendant shall so deny the same, then the burthen of proving the 
proper execution of the contract so sued on, for the recovery of which the suit 
is brought, shall rest on the plaintiff, as in other cases when the plea of ?ion 
est factum is properly plead. 
Oyer may be 691. Sec, II. That the defendant may at any time crave oyer of bond, 
demanded, bj]]^ note, or other contract, for the purpose of filing such defence. 
Execution 691*. Sec. III. That incases where the members of any corporation, joint- 
must be levied stock company or association are liable ultimately, or in the second instance, 
on property of it shall be the duty of the sheriff, or other officer charged with the execution 
^^hi"*^ 1 ' ^^ ^^ process against the party first liable, to make diligent search for and 
otherwise ^^^1 ^"^'^ executicm or process, on the property in the possession of such party 
directed, so primarily liable, and in no case tp-ievy on property in the possession of and 
claimed by any other person, unless specially directed so to do, in writing, by 
the plaintiff in such process, or his attorney. 
Sec. IV. [Repeals all conflicting laws.] 

An Act to preserve and dispose of property and effects of Corporations, after 
their dissolution ; and to provide for the payment of the debts due by the 
same. — Approved Dee. 15, 1855. 
Effects of dis- 692. Seg. 1. Be it enacted, That from and after the passage of this act, 
solved Cor- either by the expiration or forfeiture of its charter, or in any other manner 
^I'^^Dosed o^^ whatever, any corporation shall be dissolved, the real estate belonging to such 
dissolved corporation at the time of such dissolution, shall not revert to the 
grantor ; nor its personal estates escheat ; nor the debts due to and by such 
corporation, at the time of its dissolution, be extinguished ; but the same 
property, both real and personal, and the debts due to such corporation, shall 
remain as if no such dissolution had taken place, and become a trust-fund, first 
for the payment of the debts due by such corporation, and next, for distribu- 
tion amongst the stock- holders thereof. 
Judo-e must ^^^' ^^^- ^^' That it shall be the duty of the judge of the superior courts 
.appoint Ke- of the circuit in which such dissolved corporation may have been located, on a 
ceiver. suitable and proper application of any creditor of (and on failure of any credi- 
tor to do so, by any stock-holder in the same,) to appoint a receiver to take 
charge of the property, assets and effects of every kind and description, of 
Officers must such corporation. And on such receiver being appointed as aforesaid, (or by 
account to the legislature, or by the authority of the same, and on notice of the same 
Receiver, being given to the person or persons last acting as president, director and 
cashier of such corporation, it shall be the duty of all and each of them, within 
the time and at the place prescribed in said order of appointment, to appear 
before the judge appointing such receiver, or before the judge of the superior 
courts of the circuit where such corporation was located, if such receiver should 
be appointed by the legislature or its authority, and under oath, turn over and 
deliver up to such receiver, all the property, both real and personal, belonging 
to said corporation, with the evidences of title to the same; also, all the assets 
and effects of such corporation, of every kind and description whatsoever ; to- 
gether with all the books and papers belonging to or used by such corporation 



JUDICIARY.— ARBITRATION. 227 

connected in any manner, with their business. And if said corporation had Must exhibit 
at any tinae before dissolution, suspended payment or refused to pay its iia- Assets, etc. 
bilities, it shall be the duty of said president, director and cashier, to make 
out and return, under oath as aforesaid, a full and complete statement of the 
state and condition of said corporation, at the time of such dissolution ; to- 
gether with a schedule and statement of all the property, assets and effects of the 
same, at the time last aforesaid, and the disposition made of said property 
and assets, or show to the officer appointing such receiver, some good and 
sufficient reason why he should not comply with the provisions of this act. 

694, Sec. HI. That on failure of such president, director and cashier, to Punishment 
appear before the officer aforesaid, after notice of the appointment of such re- ?^ contuma- 
ceiver aforesaid, or render to such officer some satisfactory reason for not^^^'"^^ 
doing so, [^Aey] shall severally be deemed guilty of a misdemeanor, and on 
conviction thereof, be punished by confinement in the penitentiary, for a term 

not less than two years, nor more than four years. 
Sec. IV. '[Repeals all conflicting laws.] 

An Act to amend an act "Pointing out the mode of collecting a certain de- 
scription of Debts therein mentioned," approved December 19th, 1818 ; and 
to extend the provisions of the same [50] as to embrace Corporations. — 
Approved Dec. 11, 1858. Act of 1818, 

695. Sec. I. That the said recited act, be and the same is hereby so al-^^*®'^^^? *® 
tered and amended as to embrace debts against corporations, as well as joint- 

obligors and joint-prom issors. And that in all such cases, the plaintiff, may at 
his election sue, at law, the surviving co-partner or co-partners, or the repre- 
sentative of the deceased co-partner or co-partners, or all, in the same action ; 
subject to the proviso in said act mentioned. — \_See Declaration, Plea, etc^ 
Sec. II. [Repeals conflicting laws.] 



ARBITRATION. 

696. Sec. XXX. In all matters submitted to reference by parties in a Matters in 
suit, under a rule of court or other agreement in writino^, signed by the dispute may 
parties, judgment shall be entered up by the party in whose favor the Ai^'Ji^''a»^ea. 
award is given, and execution shall issue for the sums awarded, to be paid 

as they respectively become due ; and to be levied on the property of the 
party against whom the judgment shall have been entered up. And such 
other proceedings shall be had thereon by the court, as in cases of judg- 
ments entered up on verdicts of juries : Provided, that no judgment shall 
be entered upon an award where it shall appear any other cause or causes 
stand on the docket of the court, against the defendant or defendants un- 
determined, before the cause in which a rule or other agreement in Avriting 
for arbitration, is entered. — \See next Act.^ 

Aisr Act to authorize persons to submit controversies to Arbitration ; de- 
claring how Arbitrators shall be chosen ; prescribing their forms; regu- 
lating the manner in which their proceedings shall be conducted, and 
for other purposes therein mentioned. — Approved 3farch 5, 1856. 

697. Sec. I. The General Assembly of the State of Georgia do enact Controversies 
as follows: All persons having matters of controversy, may submit the maybe 
same to arbitration ; and any personal representative of any decedent, or submitted to 
guardian of any infant, idiot or lunatic, or any trustee, may submit to ar- -^^"^"^^^^o^- 
bitration any matter of controversy touching the estate or property of 



228 JUDICIARY.— ARBITEATION. 

such decedent, infant, idiot or lunatic, or in respect to which he is trus- 
tee. 
Number of 698. Sec. II. Every arbitration shall be composed of three arbitrators, 
Arbitrators, q^^q ^f -^yi^Qi-Q sj^all be chosen by each of the parties, and one by the arbi- 
trators chosen by the parties. 
Submissions 699. Sec. III. All submissions to arbitration shall be in writing, and 
to be in shall contain a clear and accurate statement of the matters in controversy 
■vvritmgan ^^jl^j^^^^g^. ^Yiq names of the arbitrators chosen by the parties; and also, 
"parties. ^^J other matter that may be pertinent to said submission. Said submis- 
sion shall be signed by the parties, or their agents, and when so signed 
shall be delivered to one of the arbitrators chosen by the parties, and 
when this is done said submission shall be irrevocable, except by the con- 
sent of all the parties. 
Time and pl'ce 700. Sec. IV. The arbitrators chosen by the parties shall then choose 
of meeting, another arbitrator, and they shall appoint their time and place of meeting, 
which shall be done as soon as can be done consistent with a proper prep- 
Notice, aration of the case, and the parties shall have three days' notice of the 

time and place of meeting. 

List of 701. Sec. V. At the time the submission is made, or so soon thereafter 

witnesses, ^g ^..^^^ conveniently be done, it shall be the duty of the parties to furni^^h 

the arbitrators chosen by the parties, or one of them, with a list of the 

Avitnesses whose testimony they desire to be had before the arbitrators. 

Neglect not to and any party neglecting to do this for ten days after said submission is 

cause delay, made, the hearing of the said case shall not be delayed on account of the 

witnesses on the part of the party so neglecting not being present. 

Power of 702. Sec. YI. Said arbitrators shall be clothed with all the powers of 

Arbitrators, the superior courts, to compel the attendance of witnesses before them, 

and also to compel them to testify ; and any one of said arbitrators shall 

Subpoena, have power to issue subpoenas requiring the attendance of witnesses at the 

time and place appointed for their meeting; which subpoenas shall be 

served in the manner pointed out by law for the service of subpoenas in 

Pay of cases pending in the superior courts. And witnesses so attending shall be 

Witnesses, entitled to the same compensation as witnesses attending the superior 

courts, and may be collected in the same way. 
Interrogato- 703. Sec. VII. Testimony may be taken by commission, under the 
ries. same circumstances and. in the manner and subject to the same rules 
and regulations as is now prescribed by law for the taking of testimony by 
commission in the superior courts, saving only that the original interroga- 
tories shall be filed with one of the commissioners [arbitrators^ and the 
How directed, commission issued by one of the commissioners, [arMt7'ators.] And the 
testimony when taken, shall be directed to the arbitrator who issued the 
commission. 
Wbo may be 704. Sec. VIII. All free white persons who have arrived at sufficient 
Witnesses, age to understand the obhgation of an oath, and are not idiots or lunatics, 
including also the parties to said submission, shall be competent witnesses 
in all cases before the arbitrators, saving only that the wife shall not be 
witness against the husband nor the husband against the wife, except in 
cases where the same is allowed by law. 
Books; etc. , to 705. Sec. IX. Said arbitrators shall be clothed with all the powers of 
be produced, the superior courts, to compel parties to produce books and all other 
papers that they may deem necessary and proper for the investigation of 
the matters submitted to them, giving to the party or his agent, from 
whom the production is required, thirty days' notice. 
Absence of 706, Sec. X. When the arbitrators meet for the purpose of hearing 

Arbitrator said case, if any one of the arbitrators selected by the parties should not 
how supplied. 



JUDICIARY.— .ARBITRATION. 



229 



May adjourn 

from day to 

day. 

Award re- 



Effect of 
Award . 



be present, the party whose arbitrator is absent may then choose another 
in his place. And if the arbitrator chosen by the arbitrators is absent, 
the arbitrators chosen by the parties may choose another in his place. And 
the arbitrators so chosen shall have all the powers of the arbitrators first 
chosen. 

707. Sec. XI. When the arbitrators meet for the purpose of hearing Oath of 
said case and making up their award, they shall first be sworn, impartially Arbitrators, 
to determine the matters submitted to them according to law and the 

justice and equity of the case, without favor or affection to either party. 
And which oath they may administer to each other. 

708. Sec. XII. When, iipon the meeting of the arbitrators, either postponem'ts 
party shall not be ready for trial, it shall be lawful for the arbitrators to allowed, 
postpone the hearing of the case to a future day, which day shall be as 

early as possible, looking at all the circumstances of the case, but there 
shall not be more than two adjournments of the case except from j^rovi- 
dential cause. 

709. Sec. XIII. After said arbitrators shall have commenced their in- 
vestigation, they may adjourn from day to day, until their investigations 
are completed and they have made up their award. 

710. Sec. XIV. After said arbitrators have made up their award, they 
shall furnish a copy of the same to each of the parties, and shall return the ^"^'".^*^' copies 
original award to the next superior court of the county where the award "^^^^'^^^' 
is made, and said award shall be entered on the minutes of said court, and 
shall have all the force and effect of a judgment or decree of said superior 
court, and may be enforced in the same way, at any time after the adjourn- 
ment of said court, and shall be final and conclusive between the parties 

as to all matters submitted to the arbitrators, unless objections shall be 

plead to the same, as provided in the next section of this act. And that 

for each and every award entered upon the minutes of the superior court, Fees of the 

the clerk shall be entitled to the same fees as are now allowed by law for Olerk. 

the entering of judgment in other cases ; to be paid by the })arty against 

whom the award is made. 

711. Sec. XV. When said award shall have been returned to said Suggestion of 
court and entered upon its minutes, as provided in the previous section of ^^"J' ^'^^^ 
this act, it shall be lawful for either of the parties to suggest on oath, to 
said court, at the term to which said award is returned, that said arbitra- 
tors, or some one of them, has been guilty of fraud and corruption in 
making said award. And it shall be the duty of said court to cause an 
issue to be made upon such suggestion, which issue shall be heard by a 
special jury, under the same rules and regulations as are prescribed for 
the trial of appeals ; and which trial shall be had at the same term of the 
court at which the suggestion is made, unless good cause is shown for a 
continuance, when the same may be continued for one term and no longer. 

712. Sec. XVI. If the jury shall return a verdict, finding that said 
arbitrators, or either of them, had been guilty of fraud or corruption in 
making up said award, it shall be the duty of the court forthwith, to pass 
an order vacatina: and settino- aside said award, and the same shall be null 
and void. But if said jury shall not so find, said award shall remain in 
full force, as provided in the previous section of this act, and shall be final 
and conclusive. 

713. Sec. XVII. Said arbitrators shall have power to administer oaths 
to witnesses, and all other oaths that may be necessary for carrying this 
act into full effect. 

714. Sec. XVIII. Said arbitrators shall return in their award, the How Costs to 
costs of the case, which they may tax against either party, according as ^^ taxed. 



made and 
tried. 



Award 
vacated. 



Award 
conclusive. 

Oaths to 
Witnesses. 



280 JUDICIARY.— ARBITRATION. 

shall seem just and right ; or they may tax part of the cost against one 
party and part against the other. 
ofTiSrators! ^^^' ^^^'' ^^^- ^^^^ arbitrators shall have such com^^ensation for their 
' services as may be agreed on by themselves and the parties, and which 
shall be paid equally, by the parties. 
Sec. XX. [Repeals conflicting laws.] 

Submission. 

STATE OF GEORGIA, ) Whereas, there exists between the undesigned, 
Houston County. ^ ^ matter of controversy touching the soundness of 
a Negro man named Sam, lately sold and warranted to he sound and well^ 
by John Doe to Richard Roe. And whereas, the undersigned prefer to 
submit said matter of controversy to the Arbitrament of Arbitrators, 
rather than a suit should be instituted in the Courts ; they have there- 
fore, determined to submit the same to the Judgment and Award of 
Charles Smithy chosen by John Doe, and James West chosen by Richard 
Roe, and Willis Thomas, chosen by said Charles Smith and James West. 
This May 1, 1859. John Doe, 

Richard Roe. 

Notice to the Parties. 

STATE OF GEORGIA, ] To John Doe and Richard Roe— You are hereby 
Houston County, f notified, that the undersigned will meet in the 
town of Perry, on the tenth instant, for the purpose of hearing and deter- 
mining the matter of controversy existing between you, touching the 
soundness or unsoundness of the Negro man Sam. This May 1, 1859. 

Charles Smith, ) 
James West, > Arbitrators. 
Willis Thomas, ) 

Oath of Arbitrators. 

STATE OF GEORGIA, j You, and each of you, do solemnly swear, that 
Houston County. j" jq^ ^^Y\\\ impartially determine the matter of con- 
troversy existing between John Doe and Richard Roe, touching the 
soundness or unsoundness of a Negro man named Sam, submitted to you, 
according to law and the justice and equity of the case; without favor 
or affection to either party. 

Sworn to and subscribed ) ChARLES SmITH. 

before me, this 3Iay 10, 1859. / JaMES WeST. 

James Mack, J. P. \ WiLLIS ThOMAS. 

Award of Arbitrators. 

state OF GEORGIA, I The undersigned having met, this day, in the 
Houston County, j" /^^^ of Perry, for the purpose of hearing and deter- 
mining a certain matter of controversy existing between John Doe and 
Richard Roe, touching the soundness or unsoundness of a Negro man 
named Sam, proceeded first to the examination of the Bill of Sale for 
said Negro man Sam, by which it appears, that on the frst day of Feb- 
ruary lastj said John Doe sold to said Richard Roe said Negro man Sam, 



JUDICIARY.— ARBITRATION. 231 

for the sum of one thousand dollars cash. In which Bill of Sale, said 
John Doe warranted said Negro man to be sound and well, and a slave 
for life. Said Richard JRoe then introduced Jonas Frosty M. D., a prac- 
tising physician, who under oath, gave in evidence that he was called 
in professionally to visit said Negro man Sam^ on the fifteenth day of 
February last; that said Negro man Sam, was attacked with small-pox, 
of which disease he lingered until the twentieth day of February last, on 
which day said Negro man Sam died. And said Jonas Frost, under 
oath, gave it as his professional opinion and conviction, that on the first 
day of February last, the date of the aforesaid Bill of Sale, the disease 
of small-pox was lurking in the system of said Negro man Sam, and 
that he was, at that time, afflicted with said disease, although it did not 
develope itself till after that day, and of that disease he died. And 
that said Richard Roe paid his Bill of fifty dollars. Said Richard Roe 
also introduced John Smith, who under oath, stated that he was 
employed by said Richard Roe for the purpose of attending as nurse 
upon said Negro man Sam ; that said Negro man had every attention 
paid him during his illness, that his condition allowed and required, 
and that said Richard Roe paid deponent for his attendance on said 
Negro man, the sum of thirty dollars. Here Richard Roe closed his case. 
John Doehemg called upon for his evidence in the case, produced Wil- 
liam Tims, who under oath stated that he knew the Negro man Sam ; 
that on the first day of February last, he saw said Negro man and con- 
versed with him ; that he did not discover that anything was the mat- 
ter with said Negro man on that day, nor did said Negro man complain 
of being unwell. John Doe introduced no other witness. 

According to this statement of facts, the undersigned have deter- 
mined, first, that said Negro man Sam, on the twentieth day of February 
last, died of small-pox ; that although said disease had not shown itself 
to exist, nevertheless, it did exist in the system of said Negro man on 
the first day of February last, the date of the Bill of Sale ; and there- 
fore, on that day said Negro man was unsound of the disease of which 
he died. Secondly, it is determined, that said John Doe refund to said 
Richard Roe the sum of one thousand dollars, the purchase-price of said 
Negro man Sam, with interest upon said sum from the first day of Feb- 
ruary last, until paid. That said John Doe pay to said Richard Roe the 
further sum of fifty dollars, Physician's Bill for attendance on said A^ro 
man Sam, with interest thereon from the twenty-first day of February 
last, until paid. And the further sum of thirty dollars. Nurse's pay, 
with interest thereon from the twenty first day of February last, until 
paid. And the further sum of seventy-five cents to each of the wit- 
nesses sworn before the Arbitrators. And the further sum of fifteen 
dollars, five to each of the Arbitrators, that being the sum agreed 
upon by the parties : making in all the sum of one thousand and ninety- 
seven dollars and twenty-five cents. This May 10, 1859. 

Charles Smith, ) 

James West, > Arbitrators. 

Willis Thomas, ) 



232 JUSTICE OF THE PEACE AND CONSTABLE. 

Order by the Court, 

In tlie matter of controversy concerning a certain Negro man named 
Sam^ between John Doe and Richard Roe^ submitted to the Arbitration 
of Charles Smithy James West, and Willis Thomas^ who have proceeded 
to make their Award and have filed the same with the Clerk of this 
Court; it is, on motion, ordered, that said Award be received and 
entered on the minutes and be made the judgment of this Court; and 
that Execution issue for the sum to be paid in said Award, (against said 
John Doe^) returnable to the next term of this Court. 



CHAPTER II. 

JUSTICE OF THE PEACE. 

An Act to carry into effect the 4th and 5th sections of the 3d Article of 
the Constitution of the State of Georgia. — Approved Dec. 21, 1819. 
Justices of the 1. Sec II. There shall be two justices of the peace in each captain's 
Peace, how district, in the several counties of this State, who shall be elected on the 
elected. fi^st Saturday in January, 1821, and on the first Saturday in January, every 
fourth year thereafter, by the citizens of the district to which they respec- 
tively belong, entitled to vote for members of the General-Assembly. 
Who shall Which election shall be superintended by three freeholders of the district, 
superintend whose duty it shall be to take the following oath, to be administered by 
Elections, ^j^^g captain or commanding officer of said district, or any magistrate of the 
Oath of Super- county, to wit: "I, A B, do solemnly swear, that I will, to the best of my 
intendents. abilities, superintend the election of Justices of the Peace for this district 
Governor to — SO help me God." And said freeholders shall transmit a return of said 
Commission, election, within twenty days, to his excellency the governor, who is hereby 
authorized to commission the person or persons, so elected accordingly. 
TermofOffice. And the said justices of the peace shall hold their appointments during 
the term of four years, and until their successors are elected and qualified, 
How and for unless they shall be removed by conviction, by indictment in the superior 
what re- court, for mal-practice in office, or for any felonious or infamous crime, or 
moved. -^j ^-^^ governor, on the address of two-thirds of each branch of the 
Vacancy how General-Assembly. And when any vacancy or vacancies shall haj)pen, by 
filled. death, resignation or otherwise, of any justice or justices of the peace, it 
shall be the duty of one justice of the peace, and two freeholders, which 
said freeholders, previous to holding said election, shall take the oath above 
prescribed, to advertise in three of the most public places in the district 
where such vacancy or vacancies may happen, the time of holding an 
election for the purpose of filling such vacancy or vacancies, and give at 
least fifteen days' notice of the time and place, when such election shall be 
held. And it shall be the duty of the said justice and freeholders, to super- 
intend such election, and certify the same, under their hands, to his excel- 



JUSTICE OF THE PEACE AND CONSTABLE. 283 

lency the governor, who shall, within ten days after receiving the same, 
commission the person or persons having the highest number of votes : 
Provided^ the election is not contested. 

Oath of Justice of the Peace. 

STATE OF GEORGIA, •) You, James Mack, do swear that in the office of 
Houston Count3^ j Justice of the Peace, in and for the six hundred 
and nineteenth District, Georgia Militia, County aforesaid, in all and 
every the articles in the Commission of the peace enjoined and to you 
directed, you will do equal right to the poor and the rich, according 
to 37our knowledge and the laws, statutes and acts of the General- 
Assembly, of force in this State. You shall not be of counsel to any 
person in any controversy depending before you. And you shall, 
according to the directions of the several acts of the General- Assembly, 
truly account for and pay, or cause to be paid, all the fines and forfeit- 
ures which shall be recovered before you. You shall not spare any 
one for any gift or other cause ; nor take anything for doing the busi- 
ness of your office of Justice of the Peace, but the fees and allowances 
accustomed and fixed by act of the GeneralAssembly. You shall 
not direct, nor cause to be directed, any process by you made, to the 
parties themselves, but to the Constables of said District and County, 
or other State's officers, or disinterested persons, to execute the same. 
And in all things, you shall well and truly do and execute the office 
of Justice of the Peace in said County. And you do further swear, 
that you will support and defend the Constitution of the State of 
Georgia, and the Constitution of the United States. And that you are 
not the holder of any public moneys unaccounted for — so help you 
God. This January 10, 1859. 
Before me— John Eagin, J. J. G. — [See 5.] James Mack. 

Advertisement to fill Vacancy. 

On the first Saturday in June next, an election will be held at the 
Court-House in the six hundred and nineteerdh District, Georgia Militia, 
County of Houston, for a Justice of the Peace, to fill the vacancy 
occasioned by the resignation of James Mach, Esq. This May 10, 
1859. Silas Kawls, J. P. 

William Talton, \ -ri -, i-, 
Samuel Felder, [ -P^^*^''^*^- 

Certificate of Superintendents. 

STATE OF GEORGIA, | To his Excellency Joseph E. Brown, Governor 
Houston County. J of said State. 

The undersigned Superintendents of an Election held this day for a 
Justice of the Peace, in and for the six hundred and nineteenth District, 
G. M., to fill the vacancy caused by the resignation of James Mack^ 
Esq., hereby certify that the foregoing contains a correct statement of 
said Election. This June 8, 1859. 

Silas Eawls, J. P. 

WiLLAIM TaLTON, ) rr 777 

Samuel Feldee, ^ ^^^^^o^^- 



234 JUSTICE OF THE PEACE AND CONSTABLE. 

An Act to compel the Justices of the Peace in this State, to keep a fair 
and regular Book of Entry. — Approved Dec. 13, 1809. 
Book of Entry 2. Sec. I. From and after the first day of March next, it shall be the 
to be kept, duty of each justice of the peace in this State, to keep a fair and legible 

Book of Entry, of all civil proceedings had before him, for the recovery 

of debts, &c. 
Book to be 3. Sec. II. In all cases where any justice of the peace in this State, 
delivered to gjjj^u resign or remove out of the limits of the district for which he shall 

have been appointed, it shall be the duty of such justice to deliver said 

Book, or a fair copy thereof, to his successor in office, within sixty days 

after he may be commissioned, or deposit the same with the clerk of the 

inferior court. 

Act to amend the Judiciary Act of this State, so far as respects Justices 

of the Peace. — Approved Dec. 9, 1819. 

Non-resident 4. From and after the passage of this act, it shall and may be lawful 

Plaintiffs for all and every justice of the peace in this State, (on application of any 

required to non-resident of the county or State,) for any civil process, to require said 

Cost. non-residents to deposit the cost, or give sufficient security for the same. 

Any law, usage or custom, to the contrary notwithstanding. 

An Act to authorize any Justice of the Inferior Court of the County, to ad- 
One Justice of i^inister the oath of office to Justices of the V<^'^q.&.— -Approved Dec. 11, 1858. 
the Inferior ^- '^EC. I. That all justices of the peace who may be hereafter elected in 
Court may this State, may take the oath of office before any justice of the inferior court, 
qualify Justice of the county for which they may have been elected. And the governor is 
o e eace. jjej.g.]3y authorized to issue his dedimus potestatem^ accordingly. — 
Sec IL — [Repeals conflicting laws ] 



CONSTABLE. 

An Act to make Constables elective by the people ; and the mode of taking 
their Bonds ; and to point out their duty in certain cases. — Approved Dec. 
22, 1829. 
Constables 6. An election shall be held at the place of holding justices' courts, in each 
elected by the captain's district, on the first Saturday in January, of each and every year, 
people annu- \^^ persons entitled to vote for members of the General-Assembly ; for at 
^ ^* least one and not more than two constables. Which election shall be super- 

intended by at least one of the justices of the peace and two freeholders; who 
shall hold his or their appointments until the tirst Saturday in January next 
thereafter, and until his or their successor is elected and qualified. 
Oath taken "T". Sec. 11. Before any constable shall enter on the duty of his appoint- 
and Bond ment, he shall take the usual oath and enter into the usual bond, to be ap- 
given. proved of by the justice or justices of the peace of their respective districts. — 
l^ee 10 and 20.] 
Election fail- ^* ^^^* ^^^' ^^^'^ ^^ election should fail to be held at the time aforesaid, 
ing, new one <^^ ^ vacancy should happen, it shall be the duty of the justice or justices 
to be held and aforesaid to advertise an election in three of the most public places in their dis- 
how. trict, giving at least ten days' notice of the time and place; which shall be con- 
ducted in the same manner as aforesaid. And w^ho shall hold his or their ap- 
pointment until the first Saturday in January next thereafter, and until his or 
their successors is elected and qualified. — \pee 12 and 14.] 



JUSTICE OF THE PEACE AND CONSTABLE. 235 

9. Sec. IY. Whenever notes for collection shall be placed in the hands of Must receipt 
the constable, it shall be his duty to grant receipts for the same, and pay over for Notes, and 
the amount when collected to the plaintiff, or his, her or their agent or attorney, jj^^^g^g goj. 
unless there should be conflicting claims ; it shall then be the duty of the con- jg^t'd thereon, 
stable to report the same to the next justices' court of said district, subject to 

the order of said court. 

Sec V. Ail laws and parts of laws militating against this act, are hereby 
repealed. 

An Act for the appointment of County Officers. — Approved Feb, 16, 1799. 

10. Sec. Y. And shall also take the following oath before a justice of the Oath of Con- 
inferior court or justice of the peace: " I do solemnly swear, (or affirm,) stable, 
that I will duly and faithfully perform, all the duties required of me as con- 
stable of the county of , according to the best of my abilities and 
understanding;." And where it shall so happen that no fit and proper person No candi- 
or persons o'^^v themselves as candidates, the said court '[Inferior Court] shall dates, Justices 

pass an order directinethe justices in any district, or one of them, to draw not ^ f ^^P^ 
T f \ r> •niini_ may appoint, 

exceeding two persons from such company, to serve as aroresaid ; who shall be 

liable to a fine of forty dollars, to be levied by order of said inferior court, on 

refusal to act, or procure some other person to serve for him. — \_See 14.] 

An Act to alter and amend the several Judiciary Acts now in force in this 
State, so far as relates to Justices' Courts. — Approved Dec. 14, 1811. 

11. Sec. XXYI. The justice or justices in any district having no con- No Constable 
stable, is or are, hereby authorized and empowered to appoint not exceed- j^g^j^g ^^y 
ing two fit and proper persons within the said district, to w^hom they shall appoint, 
administer the oath of office ; who shall give bond and security as pointed 

out by laAV. And the person or persons so appointed, shall continue in 
office until the next inferior court, and until a successor is duly appointed 
and qualified. — [^See 12.] 

An Act to amend an act entitled " an act to make Constables elective by 
the people, and the mode of taking their bonds; and to point out their 
duty in certain cases." — Approved Dec. 20, 1834. 

12. From and after the passage of this act, it shall and may be lawful Justice may 
for the justices of the peace in the several militia districts in this State, or appoint Con- 
either of them, in the absence of the others, to appoint constables for spe- gpgciarocca- 
cial purposes, or to meet sudden emergencies ; in cases where the constable, sions. 
elected by virtue of the act aforesaid, shall be absent from the district for 

w^hich he was elected ; or shall, from providential causes, be disabled or 
prevented from discharging the duties of his office. 

13. Sec. II. Nothing in this act shall be so construed as to authorize And not 
justices to appoint or deputize constables, in any case or cases whatever, otherwise. 
except those before specified. — [See 12, 14 and 15.] 

Sec. III. All laws or parts of laws miUtating against this act, are here- 
by repealed. 

Aisr Act to authorize Justices of the Peace in this State, to appoint Con- 
stables, in certain cases therein named. — App>roved Dec. 28, 1838. 

14. Sec. I. De it enacted^ That w^henever any vacancy in the office of Vacancy may 
constable shall occur in any militia district in this State, by death, removal be filled tem- 
or otherwise, it shall and may be lawful for the justices of the peace of the . po^^^iv- 
district, where such vacancy may occur, to appoint some fit and proper 

person to act as constable for such district, till a successor may be elected 
and qualified, as is now required by law. 



236 JUSTICE OF THE PEACE AND CONSTABLE. 

And incase of 15. Sec. II. When the constable of any district may be unable to per- 
sickness and form the duties of his office, from sickness or other disability; or on ac- 
^^^^ne«s "^^' ^*^^^^^ ^^ ^^^^ amount of business being so great that it cannot be done in 

due time by the constable of the district, the justices of said district may 

appoint some suitable person to act as constable for such district, during 

such disability. 
Bond and se- 16. Sec. III. All persons appointed to act as constables by virtue of 
curity must be ^-^ig ^ct, shall give bond and security, (and be sworn,) for the faithful per- 
given, e c. fop^Yj^nce of their duties, as constables are now required by law to do. 

Sec. IV. All laws and parts of laws militating against this act, be and 

the same are hereby repealed. 

Constable's Bond. 

STATE OF GEORGIA^ \ 

Houston County. j We, John Doe as principal, and Richard Roe 
and John Smith as securities, all of the State and county aforesaid, ac- 
knowledge ourselves held and bound to John Ragin, John D. Winn^ 
William F. Postell^ William T. Swift and Charles Anderson, Justices of 
the Inferior Court of said County, and their successors in office, in tbe 
sum of jive hundred dollars, subject to the following condition — 

The condition of the above obligation is as follows — whereas, said 
John Doe has been elected Constable in and for the six hundred and nine- 
teenth district, Georgia Militia, in said County: now, should the said 
John Doe truly and faithfully discharge the duties of his said offi.ce 
(during the time of his continuance in office), as required by law, then 
this obligation to be void ; else, of force. This January 10, 1859. 

Approved — ) John Doe, priyiH. [L. S.] 

James Mac\ J. P\ * EiCHARD KoE, secHy. [L. S.] 

Henry Ross, J P. ) John Smith, secfy. [L. S.] 

Note. — The above Form, with some simple alterations (which will readily ruggest 
themselves), will be suflQcient, whether the Constable be elected or appointed. If the Con- 
stable be appointed, an entry to that effect should be made in the Docket-Book of the Jus- 
tice of the Peace making the appointment ; this should be observed whether the person 
be appointed to fill a vacancy, or on a special occasion. 

For Constable's Oath, see 10. 

An Act to authorize suit to be brought upon Constables' Bonds, without 
order of Court. — Approved Dec. 22, 1857. 

Constable's ^^'^ ^^^' ^' "^^^^ ^'^'^^^ ^^^ ^ft^^" t^® passage of this act, it shall and 

Bond may be ^^7 ^^ lawful for any person who may have been, or may hereafter be 

sued upon injured by the misconduct or neglect of duty of any constable, of any 

without order, county of this State, to bring suit upon such constable's bond, in any court 

having jurisdiction thereof, for the use of such person so iujured, without 

first obtaining an order of court, as now required by law. 

Return of Superintendents of Election, 

STATE OF GEORGIA, ) 

Houston County. j To the Inferior Court of said Countj. 
The undersigned, Superintendents of an election for Constable, held 
in and for tbe six hundred and nineteenth District, Georgia Militia, this 
day, certify that John Doe was duly and lawfully elected to that office, 



JUSTICE OF THE PEACE AND CONSTABLE. 237 

and lias given Bond and taken the oath of office, agreeably to law. 

This January 10, 1859. 

Given under our hands and official signatures. 

James Mack, J. P. ) 
Egbert Eix, freeholder^ v Super'ts. 
John Wall, freeholder^ ) 

I 

Order of the Inferior Court. 

It appearing by the return of the Superintendents of an election held 
on the tenth day pf January last^ for Constable in and for the six hun- 
dred and nineteenth district, Georgia Militia, in said county, that John 
Doe was duly elected to that office, and has given Bond and security, 
and taken the oath of office, agreeably to law, it is ordered, that said 
John Doe be and he is hereby recognized as Constable in and for said 
District and County, and that said return, and the Bond of said Rich- 
ard Roe be filed in the Clerk's office of this Court, and recorded. 

Note. — The Constable should apply to the Clerk and procure from him a certified copy 
of the above order. — See 17. 

Clerh^s Certificate. 

STATE OF GEOKGIA, ) 

Houston County. j" I do hereby certify, that the within is a correct 
transcript from the Minutes of the Inferior Court of said County, of 
the facts therein contained. This January 10, 1859. 

lSeal?i , John H. King, C. I. C. 



- Levy by Constable where there is no personal property. 

There being no personal property of the Defendant to be found in 
this County, on which to levy this^./a., I have this day levied the same 
on lot of Land xwxxnhQT forty-nine^ in the tenth district of Houston County 
(as the property of Defendant), and given Charles Smithy the person in 
possession, due notice of said levy. This May 1, 1859. 

John Jacobs, Constable. 

Note. — ThQji.fa. and notice must be turned over to the Sheriff. 

Notice of Levy, 

STATE OF GEORGIA, ) 

Houston Gonnij. ) To Charles Smith — You are hereby notified 

that I have this day levied a fi. /a. issued from the Justices Court, in 

favor of Samuel Webb against James Jones^ upon lot of land number 

forty-7iine, in the tenth district of Houston County, as the property of the 

Defendant. May 1, 1859. 

John Jacobs, Constable. 

IsToTE. The above Notice must be served on the person in possession within five days 

after the levy is made. 



238 



JUSTICE OF THE PEACE AND CONSTABLE. 



Constable's Sale. 

STATE OF GEORGIA, i Qn Saturday^ the sixteenth instant^ will be sold, 
Houston County. j" "before the Court-ITouse door, in the six hundred 
and nineteenth District, G. M., between the lawful hours of sale, one 
Black Horse^ about eight years old, sixteen hands high, ivell broke. Levied 
on as the property of John Doe to satisfy a fi. fa. issued from the Justi- 
ces' Court, in favor of Richard Roe, This May 1, 1859. 

John Jacobs, Constable, 



Certificate of 

filino: bond 

must be had. 



Certain acts 
void. 



An Act relative to Constable's Bonds, and to regulate the proceedings 

thereon. — Approved Feb. 11, 185.0. 

17. Sec. I. Re it enacted., That from and after the passage of this act, 
that all constables hereafter to be elected in this State, shall before he 
enters upon the discharge of his official duties, receive a certificate from 
the clerk of the inferior court, that his bond has been filed in the clerk's 
office, as now required by law. And that the official acts of any constable 
before filing of his bond and receiving a certificate, according to the pro- 
visions of this section, shall be illegal and void. — \^8ee 20.] 

Sec. II. All laws and parts of laws militating against this act be, and 
the same are hereby repealed. 

Aisr Act to extend the powers of Sheriffs and Constables, in certain cases. 

— Approved Dec. 19, 1818. 

Itinerant per- 18. Sec II. It shall be lawful for any constable, and he is hereby required, 

f^T^'°^^^ ^^ in all cases where a bail or criminal process is placed in his hands, and the 

arrested person against whom the same may be, is moving about from one district 

to another, to serve the said process in any district within the county in 

which he may be a constable. 

19. Sec. III. Each and every constable shall give bond with two or 
more securities, to be judged of by the justices of the peace in their respect- 
ive districts, in the sum of |500 (unless said district be in a town, and in 
that case 11000), for the faithful performance of the duties of their office 
of constable. 



Amount of 

Constable's 

Bond. 



Aisr Act to amend the Vth section of an Act for the Appointment of 
County Officers. — [Act of 1799 repealed.] — Approved Dec. 13, 1816. 
'Whereas., the said Vth section of the act aforesaid, points out the mode 
of appointing constables for the several counties in this State, and directs 
the manner of their giving bonds, but points out no mode by which the 
bonds can be sued, in case of the neglect of duty in said constables ; for 
remedy whereof — 
Constable's 20. Re it enacted., That all constables hereafter appointed, shall before 
Bonds, how they enter upon the duties of their appointments, take the oath prescribed 
sued on ^7 ^^ ^^^^ ^^^^ section of the act above-recited, before any justice of 
the inferior court or justice of the peace. (And those constables resi- 
dent in the cities of Augusta and Savannah shall give bond, Avith two 
or more good and sufficient securities, in the sum of $400 \see 19], to 
the justices of the inferior courts of the counties of Richmond and 
Chatham, conditioned for the true and faithful discharge of the duties 
of their office.) And all other constables shall give bond in the sum of 
$200 \see 19], for the faithful discharge of the duties of their office, 
payable to the justices of the inferior courts of the respective coun- 
ties. Which bond, or bonds, so given, shall be deposited in the clerk's 



JUSTICE OF THE PEACE AND CONSTABLE. 239 

office of the inferior courts of the respective counties in this State 
[see 17], and be taken by or before any justice of the peace ; and may be 
sued by order of the inferior court, upon the application of any person or 
persons who shall make it satisfactorily appear that they have been injured 
by the misconduct or neglect of duty in said constable. Which suit shall 
be brought in the superior courts, for the use of the person or persons so 
injured. Any law to the contrary notwithstanding. 

An Act to authorize Constables of this State to serve Processes, and to 

perform other acts pertaining to their office, in any District, in certain 

cases therein specified. — Approved Dec. 22, 1840. 

21. Sec. I. Beit enacted.^ That from and after the first day of Janu- Co-obligors 
ary next, in all cases where suit or suits are commenced in any of the may be served 
justices' courts of this State, against any joint-obligors or promissors, it ^ t bleof 
shall be lawful for the constable of the district in which such suit or suits ^^jg District 
are commenced, to serve all processes on all of the parties, and do all others although they 
legal acts which may be required of them, in the progress of such suit or may reside out 
suits ; in any district or districts in the county in which such suit or suit ^^ ^*" 
may be commenced. 

Sec. II. That all laws and parts of laws to the contrary, be and the 
same are hereby repealed. 



LAWS RELATING TO BOTH JUSTICES AND CONSTABLES. 

An Act more effectually to compel Justices of the Peace and Constables to 
pay over moneys received or collected by them in their official capacities. — 
Approved Dec. 22, 1820. 

22. Justices of the Peace shall be so far considered officers of the superior Justices may 
court, as to be subject to be ruled, under similar regulations as are custom- ^^' ruled, 
arily pursued in relation to any other officer of said court, when they shall 

refuse or neglect to pay over any moneys which they may have received Or 
collected in their official capacity. — [See 24.] 

23. Sec. II. Constables shall be subject to be ruled by their respective Constables 
justices' courts, and compelled to give an account of their actings and doings, may be ruled, 
or pay over moneys which they may have received or collected in their 

official capacity, under the same regulations as are pursued in the superior 
court, in relation to officers of said court. — [See next Act.] 

An Act to amend an act " More effectually to compel Justices of the 
Peace and Constables to pay over moneys received, or collected, by them 
in their official capacity," passed 22d Dec, 1820. — Approved Dec. 21, 1839. 

24. Sec. I. Be it enacted, That the Justices of the Peace shall be so far How Justices 
considered officers uf the superior court, as to be subject to be ruled, under may be ruled, 
similar regulations as are customarily pursued in relation to any other officer 

of said court, when they shall refuse or neglect to pay over any moneys 

which they may have received or collected in their official capacity : Provided, ^^^^^ ^^^^ 

that in case the rule cannot be served upon the justice or justices during the served. 

term of the superior court at which the rule is granted, that it may be lawful 

to serve the same during the vacation, and be held and considered returnable 

to the next term of said court. Any law to the contrary notwithstanding. 



240 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 



JUSTICES' JURISDICTION IN CRIMINAL MATTERS. 

ASSAULT AND BATTERT. 

Assault. An Assault is an attempt to commit a violent injury on the person of an- 

other. — Cohh^s Penal Code, 85. 
Battery. Battery is the unlawful beating of another. — Cohlfs Penal Code, 86. 



Affidavit of the injured party. 

STATE OF GEORGIA, ) Before the undersigned, a Justice of the Peace 

Houston County. j in ^nd for said County, personally appeared John 

Doe^ who being duly sworn, saith, that Richard Roe^ in said County, 

on the^irs^ day of May^ eighteen hundred and jifly-nine made a violent 

Assault upon him, (deponent,) and then and there beat him. 

Sworn to and subscribed, ) 
before me, this May 2, 1869. V JOHN DOE. 

James Mack, J. P. ) 

Note. — The affidavit is not necessarily a part of the Warrant, but it is best in every 
case, that it should accompanj'' the warrant in order that its legality may appear to the 
officers who may be required to act under it. 

Warrant, 



To all lawful officers to execute and return. 



STATE OF GEORGIA, 
Houston County. 

Whereas, complaint on oath, has been made before the undersigned, 
one of the Justices of the Peace of the County aforesaid, by John Doe 
that Richard Roe, in said County, on the first day of May, eighteen 
hundred and fifty-nine, did make a violent Assault upon deponent, and 
then and there beat him. These are, therefore, to command you, forth- 
with, to arrest the said Richard Roe, and bring him before me, (or some 
other Justice of the Peace, for said County,) to answer the said com- 
plaint, and to be dealt with as the law directs. Herein fail not. 

Witness my hand and seal^ this May 2, 1859. 

James Mack, J. P. [L. S.] 

Note. — If the application be for a Warrant for Assault only, omit " and then and there 
beat him,'' in the Affidavit and Warrant. The Warrant may be made returnable before 
the Magistrate who issued it ; in such case, omit " or some other Justice of the Peace for 
said County.'' 

Constable^s Retur?i endorsed on the Warrant, 

Executed the within by arresting the body of Richard Roe, who is 
now in my custody. This May 3, 1859. 

John Jacobs, Constable. 

Note. — As soon as convenient, after the arrest, the Constable should carry the accused 
before the Justice who issued the Warrant, if it be returnable before him, or any Justice 
of the Peace, if the Warrant be not so returnable. These directions apply in all cases of 
Warrants by Justices of the Peace. 

For the Defence which the accused may make, see Cohb's Penal Code, 11 and 12. If the 
Justice believes the complaint to be well founded and properly supported, (of which, to 



JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION, 241 

be the better able to judge, he ought to hear the evidence on both sides, and if necessary, 
to give reasonable time to produce it,) he must bind over the accused, to appear at the 
next terra of the Superior Court of the County ; or if he fails to give Bond, he must com- 
mit him to Jail. If he commits, the prosecutor must^rs^ give Bond and security to pros- 
ecute. [See 29.] 

Commitment {where the party fails to give security.) 

STATE OF GEORGIA, \ To John Jacobs, one of the Constables for the 
Houston County. j" Qountj aforesaid, and to the Keeper of the Jail of 
said County. 

These are to command you, in the name of the said State, forthwith 
to convey and deliver into the custody of the Keeper of the said Jail, 
the body of Richard Roe, charged before me, on the oath of John Doe, 
with having on the second day of May last^ in the County aforesaid, 
committed Assault and Battery, upon the person of him, the said John 
Doe. And you, the keeper of the said Jail, are hereby required to re- 
ceive the person of the said Richard Roe, (he having failed and refused 
to give bail for his appearance, as required by law,) into your custody 
in the said Jail, and him there safely keep, until he be thence deliv- 
ered by due course of law. 

Witness my hand and sea\ this May 3, 1859. 

James Mack, J. P. [L. S.] 

Note. — Tho above Form of Commitment will answer in all cases. Where the Prisoner 
is Committed on a charge of Felony, the Warrant of Commitment must be signed by two 
Justices. The Prisoner may be bailed in a variety of cases, but where the charge is Mur- 
der, etc. he must be Committed ; for in such cases, Justices of the Peace are not allowed 
to bail. 

Appearance Bond Given hy the Accused, 

STATE OF GEORGIA, | We, Richard Roe, as principal, and Thomas 

Houston County. j" Qurr, as security, both of said State and County, 

acknowledge ourselves held and bound to his Excellency Joseph E. 

Brown, Grovernor of said State, for the time being, and his successors 

in office, in the sum of five hundred dollars ; subject to the following 

condition — 

The condition of the above obligation is as follows— whereas, said 

Richard Roe has been arrested by virtue of a Warrant for Assault and 

Battery, issued at the instance of John Doe. And whereas, James 

Mack, a Justice of the Peace, in and for said County, before whom 

said Warrant was returned, upon the hearing thereof, required said 

Richard Roe, to give Bond and security in the sum of five hundred 

dollars, for his personal appearance at the next term of the Superior 

Court, to be held in and for said County. Now, should said Richard 

Roe, well and truly, personally, be and appear at the next Superior 

Court to be held in and for the said County, on the fourth Monday in 

October next, to answer such matters as shall be then and there charged 

against him by John Doe, concerning Assault and Battery, committed 

by him the said Richard Roe, on him the said John Doe, and do not 

thence depart without leave of said Court, then this obligation to be 

void ; otherwise of force. This May 3, 1859. 

Approved — Richard Roe, prin^l. [L. S.] 

James Mack, J P, Thomas Gurr, sec^ty. [L. S.] 

Note. — The above form, with suitable alterations, will answer in all cases where the 
accused is bound over. 

16 



242 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 

Warrant for Affray. 

STATE OF GEORGIA, i In person appeared before the undersigned, a 
Houston Conniy, (Justice of the Peace, in and for said Counij, 
John Doe, who, being sworn, saith, that on the first day of May^ 
eighteen hundred 2Lnd fifty- nine, in the town of Perry, in said County, 
(the same being a public place,) Richard Roe and John Smith, in a 
tumultuous manner, then and there committed an affray, by fighting 
together, to the terror of the citizens and disturbance of the public 
tranquility. 

Sworn to and subscribed, ] 
before rae, this May 2, 1859. y JOHN DOE, 

James Mack, J. P. ) 

STATE OF GEORGIA, ) 

Houston County. ( To any lawful of&cer to execute and return. 

Whereas, John Doe hath, this day, made oath before the undersigned, 
a Justice of the Peace, in and for said County, that, on the fii^st day 
oi May, eighteen hundred and fifty-nine, in the town of Perry, in said 
County, (the same being a public place,) Richard Roe and John Smithy 
in a tumultuous manner, then and there committed an Affray, by 
fighting together, to the terror of the citizens and disturbance of the 
public tranquility. These are, therefore, to command you, forthwith 
to apprehend the said Richard Roe and John Smith, and bring them 
before me, or some other Justice of the Peace for said County, that 
they may be dealt with as the law directs. Herein fail not, and have 
you then and there this Writ. 

Witness m.y hand and seal, this May 2, 1859. 

James Mack, J. P. [L. S.] 

Note. — When the accused parties are arrested and brought before the Justice of the 
Peace, the proceedings are the same as in the preceding case of Assault and Battery. 
The amount of Bail is in the discretion of the Magistrate, who must be careful that it ia 
not excessive. 

Recognizance to appear and give Evidence. 

STATE OF GEORGIA, ) ^e, John Doe, as principal, and Richard Roe, 
Houston County. j" ^s security, both of the County and State afore- 
said, acknowledge ourselves indebted to his Excellency Joseph E. 
Brown, Grovernor of said State, for the time being, and his suc- 
cessors in office, in the sum oi five hundred dollars; subject to the 
following condition — 

The condition of the above obligation is as follows — should the 
above bound John Doe^ personally be and appear at the next Superior 
Court, to be held in and for said County, on the fourth Monday in 
October next, then and there to give Evidence in behalf of the State^ 
on a Bill of Indictment, then and there to be preferred, (or now there- 
in pending, as the case may be,) against John Smithy who is charged 
with the offence of Assault and Battery, and not depart thence without 
leave of the Court, then this obligation to be void; otherwise, of 
force. This May 1, 1859. 

Approved — John Doe, jprin^l. [L. S.] 

James Mack, J. R Eichard Koe, secHy. [L. S.] 



JUSTICE OF THE PEACE— CRIMINj^L JURISDICTION. 243 

Note. — The presiding Magistrate (if the accused party be committed or bound over,) 
may, and perhaps should bind over the Witnesses, (both for the State and for the ac- 
cused,) that have been sworn and examined in the trial before him ; but they are not 
required to give security. 

Warrant for Good Behaviour. 

STATE OF GEORGIA, ) 

Houston County. ( To anj lawful officer to execute and return. 

Forasmuch as tlie undersigned, one of the Justices of the Peace, in 
and for said County, is given to understand, by the information testi- 
mony and complaint of many credible persons, on oath, that John 
Doe^ of the County aforesaid, is not of good name and fame, nor of 
honest conversation, but is an evil-doer, rioter, barrator and disturber 
of the peace of the State ; so that murders, homicide, strife and other 
grievances and damages against the citizens of this State, concerning 
their bodies, are likely to arise thereby. These are, therefore, to com- 
mand you, and every of you, that you arrest the person of the said 
John Doe^ and have him before me, (or some other Justice of the 
Peace for said County,) as soon as he can be taken, to find sufficient 
sureties for his good behavior towards this State and all the citizens 
thereof. Herein fail not, and have you before me, this Writ. 

Witness my hand and seal, (his May 1, 1859. 

James Mack, J. P. [L. S.] 

Note. — For the authority of Justices of the Peace to issue Warrants for Good Be- 
havior, see Cobb's Penal Code, 20-21. Warrants of this description may be issued by a 
Justice of the Peace, upon his own motion ; in such case the Justice should examine wit- 
nesses as to the character and conduct of the accused. And Warrants for Good Be- 
havior may issue upon the affidavit of any person who will complain of the conduct and 
character of the accused. The Justice may make the Warrant returnable before himself, 
or other Justice. The testimony should be reduced to writing, and with the other papers 
of the case, returned to the Superior Court. The amount of the Bond and Security to be 
given, is in the discretion of the Justice — it must not be excessive. 

Affidavit for Warrant to Keep the Peace. 

STATE OF GEORGIA, | In person appeared before the undersigned, a 
Houston County. j Justice of the Peace, in and for said County, 
Richard Roe, who being sworn says, that he is in fear of death, by 
John Doe, of said County. And deponent further says, that he does 
not require surety of the peace against said John Doe, out of malice, 
or for mere vexation, but for the cause aforesaid. 

Sworn to and subscribed, 1 
before me, this May 1, 1859. |- ElCHARD EOE. 

James Mack, J. P. ) 

Note.— The cause assigned in the foregoing Affidavit, is the fear of death, entertained 
by the Deponent. Warrant to Keep the Peace, may issue, whenever the party will 
swear that he is in fear of some injury to be done him personally, or some injury to be 
done to h\% property ; as that the party accused, will heat him, or hum his house, etc. , or 
procure the act to be done by another. The Affidavit must distinctly specify the injury 
apprehended. 

Warrant. 

Sl^ATE OF GEORGIA, \ To any lawful Officer to execute and return. 

Houston County. j" Forasmuch, as Richard Roe, hath personally 
come before the undersigned, one of the Justices of the Peace, in and 



244 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 

for said County, and made oath, that be, the said Richard Roe^ is afraid 
that John Doe^ of said County, will kill him, and hath, therefore, 
prayed surety of the peace against him, the said Jolm Doe. And that 
he, the said Richard Roe, does not require surety of the peace against 
him, the said John Doe, out of malice, or for mere vexation, but for 
the cause aforesaid. These are, therefore, to command you, and each 
of you, that immediately upon receipt hereof, you bring the said John 
Doe before me, (or some other Justice of the Peace for said County,) 
to find suiety, as well for his personal appearance at the next Superior 
Court to be held in and for said County, as also, for his keeping the 
peace in the mean time, towards the State and all the citizens thereof, 
and chiefly towards the said Richard Roe. 
Witness viy hand and seal, this May 1, 1859. 

James Mack, J. P. [L. S.] 

Bond and Security to Keep the Peace. 

STATE OF GEORGIA, J We, John Doe as principal, and John Smith as 
Houston CoMniy. j security, both of the County and State aforesaid, 
acknowledge oijrselves held and bound to his Excellency Joseph E, 
Brown, Governor of said State for the time being, and his successors 
in office, in the sum of five hundjred dollars; subject to the following 
condition — 

The condition of the above obligation is as follows — should the 
above-bound John Doe, personally be and appear at the next Superior 
Court to be held in and for said County, on the fourth Monday in Oc- 
tober next, to do and receive what shall, then and there, be enjoined 
him by said Court, and in the mean time, keep the peace toward? this 
State and all the citizens thereof, and especially towards Richard Roe, 
then the above obligation to be void ; else, of force. This May 1, 
1859. 

Approved — John Doe, prinH. [L. S.] 

James Mack, J. P, John Smith, sedJy. [L. S.] 

Note. — The accused party has the right of being heard before the Justice of the Peace, 
and of controverting the proof against him. — Cobb's Penal Code, 22. For what causes the 
Bond may be forfeited. — Ibidem. The evidence taken in the case must, with the other 
papers, be sent to the Court. 

An Act regulating the proceedings on Bonds taken for the Security of 
the Peace, and for other purposes. — Approved Dec. 24, 1827. 
Magistrate 25. In all cases where any judge of the inferior court or justice of the 
taking Bond pgr^^^g^ shall take a bond or bonds for the security of the peace ; or where 
^the Pea^e^ any such judge or justice shall commit any person or persons, charged 
must return with an intent to violate the peace, to the common jail of the county, 
the same, or any other place of confinement, on account of the unwillingness 
or inabiUty of such person or persons to give such bonds, that then 
and in such case, it shall be the duty of the said judge or justice, forth- 
with to make a return of such bond, together with the affidavit or affida- 
To what vits, and other evidence, on which the said bond was required. Or in case 
Court return- of no bond, to make a return of the affidavits and evidence on which the 
able. person or persons were committed to jail, to the next term of the superior, 
inferior or city-court, which may first thereafter hold their sittings. And 



JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 245 

it shall be the duty of the officer prosecuting for the State in the said Duty of proee- 
court, on the first day of the said terra, or as soon thereafter as he can be cuting officer, 
heard, to move the judge or judges presiding in the said court, to take the 
same into consideration. And it shall be the duty of the said judge or Duty of the 
judges, when the case is so presented to hira or them, to examine the evi- Judge, 
dence so returned and presented, and if thereupon he shall be of opinion 
that there was no sufficient ground for requiring such bond, or for the im- 
prisonment of such person or persons, then and in such case, the said judge 
or judges, are hereby required to cause the bond or bonds so taken, to be 
cancelled ; or to discharge the said person or persons from confinement, as prosecutor 
the case may be. And if he shall be of opinion that there was no reason- may be corn- 
able ground for requiring such bond or bonds, to order and direct that pelled to pay 
the prosecutor shall pay all the costs and expenses of the said proceed- *^^ Costs. 
ings ; which costs shall be collected and recovered in the same manner as 
fees of witnesses are : Provided^ that if the said judge or judges shall Additional 
have any doubt upon the evidence presented, he or they may receive ad- proof may be 
ditional affidavits from either of the parties, touching the conduct of the received. 
parties, in relation to the causes from which such proceedings originated. 

An Act to alter and amend the several Judiciary Acts now in force in 
this State, so far as relates to Justices' Courts. — Approved Dec. 14, 
1811. 

26. Sec. X. Where any person or persons, charged with any offence. Costs in crim- 
and brought before a justice or justices of the peace, shall be discharged inalca&es,at 
for want of sufficient cause of commitment, the iustice or iustices, mav in *^^^,^^^-P^^^^?°^ 
his or their discretion, discharge the party with cost, or direct the cost to 

be paid by the prosecutor. 

An Act to regulate the action of Magistrates upon Peace Warrants. — 

Approved Feb. 21, 1850. 

Whereas^ it is the practice of justices of the peace to grant peace-war- 
rants upon an affidavit being made according to law, and of binding or 
committing the accused party without a hearing, which is contrary to 
justice ; for remedy whereof — 

27. Sec. I. Be it enacted^ That hereafter, when peace- warrants are Party arrested 
granted upon such principles as the law now prescribes, that after the i^ay introduce 
party is arrested and brought before the magistrate or committing officer, proof, 
the party in arrest shall be permitted to introduce testimony, in order to 

show there is no just ground for the warrant. 

Note. — The Magistrate before whom the proceedings take place, must reduce the testi- 
mony to writing, and certify the same to the Court to which the proceedings are made re- 
turnable by law ; that is, the next Superior, Inferior or City-Court, (as the case maybe.) 
that is in session after the proceedings take place. 

Supersedeas. 

STATE OF GEORGIA, ) James Mach, one of the Justices of the Peace in 
Houston Cowiviy. [and for said County, to the Sheriff, Constables 
and other Ministers and Citizens of said State. 

Forasmuch as John Doe hath personally been before me, and hath 
found sufficient surety ; that is to say, Philip Doe and Charles Smith, 
both of said County ; each of whom hath undertaken for the said 
John Doe (against whom a Warrant for Assault and Battery hath been 
issued) under the pain of one hundred dollars. And he the said John 



246 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 

Doe hath undertaken for himself, under the pain of two hundred dol- 
lars, that he will personally be and appear at the next Superior Court, 
to be held in and for said County, then and there to do and receive 
what shall be enjoined him by the said Court, and in the meantime 
shall well and truly keep the peace towards the said State and all the 
citizens thereof, and especially towards Hichard Boe. These are, there- 
fore, to command you and every of you, that yoa utterly forbear and 
surcease to arrest, take, imprison, or otherwise by any means, for the 
cause aforesaid, to molest the said Joh7i Doe. And if you have, for 
the said occasion and none other, taken and imprisoned him, that then, 
him you deliver, or cause to be delivered and set at liberty, without 
delay. 

Wiiiiess my hand and seal, this May 2, 1859. 

James Mack, J. P. [L. S.] 

Warra?it for Burglary. 

STATE OF GEORGIA, j_ In person appeared before the undersigned, a 
Houston County. ) Justice of the Peace in and for said County, John 
Doe, who being duly sworn, deposeth and saith, that on the tenth day 
o^ April last past, in the night-time, the dwelling-house of him the said 
John Doe, in the County aforesaid, was feloniously and burglariously 
broken open and robbed of property of the value of fifty dollars ; of 
the goods and chattels of him the said John Doe, feloniously and bur- 
glariously stolen and carried away from thence. And deponent fur- 
ther saith, that he hath just cause to suspect and does suspect, that 
Richard Roe of said County, the said felony and burglary did commit. 

Sworn to and subscribed, ) 
before me, this May 1, 1859, V JOHN DOE, 

James 3Iack, J. P. ) 



To all lawful officers to execute and return. 



STATE OF GEORGIA, 
Houston County. 

Forasmuch as John Doe hath this day, made oath before the under- 
signed, one of the Justices of the Peace in and for said County, that on 
the tenth day of ^^n7 last past, in the night-time, the dwelling-house of 
him the said John Doe, in said County, was feloniously and burglari- 
ously broken open and robbed of property of the value oi fifty dollars, 
of the goods and chattels of him the said John Doe, feloniously and 
burglariously stolen and carried away from thence. And the said 
John Doe further swears, that he hath just cause to suspect and does 
suspect that Richard Roe of said County, the said felony and burglary 
did commit. These are, therefore, to command you, that immediately 
upon sight hereof, you do apprehend the said Richard Roe, and bring 
him before me, or some other Justice of the Peace of said County, to 
answer the premises, and to be farther dealt with as the law directs. 
Herein fail not. 

Witness my hand and sea\ this May 1, 1859. 

James Mack, J. P. [L. S.] 



JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 247 

Commitment for Felony by two Justices. 

STATE OF GEORGIA, \ By James Mack and Thomas Boss, Justices of 
Houston County. j the Peace in and for said County, to John Jacobs, 
one of the Constables of said County, and to the Keeper of the com- 
mon Jail of said County. 

Whereas, Richard Roe, of said County, has been arrested on a sus- 
picion of Burglary, committed by him the said Richard Roe, in feloni- 
ously and burglariously breaking and entering, in the night-time, the 
dwelling-house of John Doe, in said County, on the tenth day of April 
last past, and stealing and carrying away from said dwelling-house, fifty 
dollars' worth of property, of the goods and chattels of said John Doe, 
(feloniously and burglariously stolen and carried away from thence.) 
"Whereupon, the said Richard Roe hath been duly examined before us 
concerning the same, and the examination before us taken, doth in- 
duce a strong presumption that said Richard Roe is guilty of the charge 
made against him. These are, therefore, to command you, the said 
Constable, safely and securely to convey the said Richard Roe to the 
Keeper of the Jail of said County ; and you the said Jailer, to receive 
the said Richard Roe into your custody in said Jail, there to remain 
till he be delivered by due course of law. 

Witness our hands and seals, this May 1, 1859. 

James Mack, J. P. [L. S.] 
Thomas Eoss, J. P. [L. S.] 

N<Ae. — The officer before whom the proceedings take place, should associate with him 
on the arrest of the accused party, another Justice, and all the subsequent proceedings 
should appear in the name of both. 

Recognizance to prosecute and give Evidence. 

STATE OF GEORGIA, | Be it remembered, that on t\iQ first day of May, 
Houston County. j eighteen hundred d^ndi fifty-nine, John Doe and John 
Smithy both of said County, personally came before the undersigned 
one of the Justices of the Peace in and for said County, and acknowl- 
edged themselves to owe to his Excellency Joseph E. Brown, Governor 
of said State, for the time being, and his successors in office, the sum 
of five hundred dollars, to be levied of their goods and chattels, lands 
and tenements, to the use of the said State, if he, the said John Doe, 
shall fail in the condition underwritten. 

James Mack, J. P. [L. S.] 

The condition of the above-written Kecognizance is such, whereas^ 
one Richard Roe, late of Macon County, in said State, was this present 
day, brought before the aforesaid Justice of the Peace, at the instance 
of the above bound John Doe^ and was by him charged with the of- 
fence of Assault and Battery^ in the County first aforesaid, and there- 
upon was committed by said Justice, (for want of bail) to the common 
Jail of the County first aforesaid. If, therefore, the said John Doe shall 
and do, at the next Superior Court, to be held in and for the County 
first aforesaid, onihe fourth Monday in October next, prefer or cause to 
be preferred, a Bill of Indictment, of the aforesaid charge, against said 
Richard Roe ; and shall then, also, give evidence there concerning the 



248 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 

same^ as well to the Jurors that shall then inquire of the said charge, 
as also, to them that shall pass upon the trial of the said Richard Roe^ 
that then this Recognizance to be void ; otherwise of force. 

Bond to Prosecute. 

STATE OF GEORGIA, ) We, John Boe as principal, and 'William H. Tal 
Houston County. j ton as security, both of the State and County afore- 
said, acknowledge ourselves held and bound to his Excellency Joseph 
E. Broiun^ Governor of said State for the time being, and his successors 
in office, in the sum of five hundred dollars ; subject to the following 
condition — 

The condition of the above obligation is as follows — whereas, the 
above-bound John Doe^ heretofore procured the issuing of a Warrant 
for Assault and Battery against Richard Roe ; and said Richard Roe 
having been arrested by virtue of said Warrant, and brought before 
James Mack^ one of the Justices of the Peace in and for said County, 
who after hearing evidence against and for the accused, required the 
accused to give Bond and security for his appearance at the next term 
of the Superior Court, to be held in and for said County. And said 
Richard Roe having failed to give Bond and security, as required, is, by 
said Justice of the Peace about to be committed to Jail. Now, should 
said John Doe well and truly, be and appear at the Superior Court, to 
be held in and for said County, on the fourth Monday in October next, 
and theti and there prefer a Bill of Indictment against said Richard 
Roe, for the offence aforesaid, and well and truly prosecute said Bill of 
Indictment to its final issue, then this obligation to be void; otherwise 
of force. This May 1, 1859. 

Approved — John Doe, principal [L. S] 

James Mack, J. P. William H. Talton, security. [L. SJ 

An Act to authorize the Justices of the Inferior Courts of this State, to 
discharge Insolvent Debtors confined by process from any Court of this 
State whatever. And to authorize Magistrates to require Bond to pros- 
ecute in criminal cases. — The original act passed Dec. 10, 1803. — [^Cap- 
Hon amended by act of Felfy 23, 1850.] 

And whereas, it often happens that prisoners, debtors and criminals, 

are committed and sent to jails in other counties than those to which they 

belong, and in which they ought of right to be confined, to the great 

injury of the county to which they are so committed ; as the criminals, in 

particular, are frequently left there without prosecution — 

Bond to pros- ^^- ^EC. II. He it therefore enacted, That from and after the passing 

ecute in crim- of this act, it shall not be lawful for any magistrate to commit a criminal 

ingjl case must to jail for any offence against the State, without first compelling the prose- 

e given. (j^^|;qj. ^q gjyg j^oud and security, to prosecute according to law. 

Bench Warrant, 

STATE OF GEORGIA, \ To all and singular, the Sheriffs, Constables and 
Houston CoiiQty. ^ ot|^er lawful officers of this State. 

Whereas, at the April term of the Superior Court of said County, 

eighteen hundred and fifty-nine^ the Grand Jurors d^idi find a Bill of In- 



JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 249 

dictment against John Doe, of said County, for the offence of Assault 
and Battery. These are, therefore, to command you, and each of you, 
in the name of the State, to apprehend the said John Doe, and bring 
him before me, or some Justice of the Peace, to be dealt with as the 
law directs. Herein fail not. 

Witness my hand and seal, this May 1, 1859. 

Henky G. Lamar, J. S. C. M. C. [L. S.] 

G. M. Montfort, Sol. Gen. 

]Si"oTE. — When the accused is arrested, the Justice of the Peace before whom he is 
brought, if the case be bailable, must bind him, in suflScient Bond and Security, for his 
appearance at the ensuing term of the Superior Court for the County in which the offence 
was committed, and from which the Bench Warrant issued. If the offence be not bail- 
able, or the accused fails to give Bond and Security, he must be committed to Jail. The 
papers should be returned to the Court having cognizance of the offence. In cases of 
Felony, two Justices must sit on the case. 

Bond for the appearance of a Witness in an Indictment, during 

the term. 

STATE OF GEORGIA, } In person appeared in open Court, John Doe^ 
Houston County. \ of said County, who acknowledges himself to 
be held and bound to his Excellency Joseph E. Brown, Goyernor of 
said State, for the time being, and his successors in office, in the sum 
of two hundred dollars ; subject to the following condition — 

The condition of the above obligation is as follows — whereas, 
there is an Indictment pending in the Superior Court of said County, 
now in sessiC)n, against one John Bellows, for the offence of Assault and 
Battery. In which Indictment said John Doe is a material witness on 
the part of the State. Now, should said John Doe well and truly, per- 
sonally, be and appear in said Court from day to day, during the term 
of said Court, and from term to term, and testify on the trial of said 
Indictment, and not depart from said Court but by leave of said Court, 
then this obligation to be void ; otherwise, of force. This Jipril 26, 
1859. 

In open Court — JoHK Doe, [L. SJ 

William H. Miller, Clerk, 

Bond for the appearance of an Indicted person, during the Term. 

STATE OF GEORGIA, | In person appeared in open Court, John Doe 
Houston County. j" ^s principal, and Richard Roe as security, both 
of said County, who acknowledge themselves held and bound to his 
Excellency Joseph E. Brown, Governor of said State for the time being, 
and his successors in office, in the sum oi five hundred dollars ; subject 
to the following condition — 

The condition of the above obligation is as follows — whereas, there 
is an Indictment pending in the Superior Court of said County, now in 
session, against said John Doe, for the offence of Assault and Battery. 
Now, should said John Doe well and truly, personally, be and appear, 
(and abide his trial for said offence of Assaidt and Battery,) from day 
to day, during the term of said Court, and from term to term, and not 



250 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 

depart from said Court but by leave of said Court, then this obligation 
to be void ; otherwise of force. This April 25, 1859. 

John Doe, prinH. [L. S.] 
In open Court — Eichard Eoe, secHy. [L. S.] 

William H. Miller ^ Glerh. 

Warrant for Vagrancy. 

STATE OF GEOEGIA, | Personally appeared before the undersigned, 
Houston County. j one of the Justices of the Peace in and for said 
County, John Doe^ who being sworn saith, that Richard J?oe, of said 
County, is a person who has no apparent means of subsistence, and 
neglects applying himself to any honest calling, but is now seen wan- 
dering about in said County, (though able to work and support himself 
in a reputable way,) endeavoring to support himself by Gaming and 
other unlawful means, leading an idle, immoral and profligate course 
of life. 

Sworn to and subscribed, "j JOHN DOK 

before me, this May 1, 1859. }- 

James Mack, J. P. J 

STATE OF GEOEGIA, ) To all lawful officers of said County, to execute 

Houston County. ^ and return. 

Forasmuch as Joh7i Doe^ of said County, hath made oath before 
the undersigned, one of the Justices of the Peace in and for said 
County, that Richard Roe^ of said County, is a person who has no 
apparent means of subsistence, and neglects applying himself to any 
honest calling, but is now seen wandering about in said County, 
(though able to work and support himself in a reputable way,) en- 
deavoring to support himself by Garaing and other unlawful means, 
leading an idle, immiOral and profligate course of life. These are, 
therefore, to command you to bring the said Richard Roe before me, 
or some other Justice of the Peace for said County, to be examined 
touching the premises, and to be otherwise dealt with as the law 
directs. 

Witness Tny hand and seal, this May 1, 1859. 

James Mack, J. P. [L. S.] 

Bond for Good Behavior and Future Industry. 

STATE OF GEOEGIA, ) l^ open Court came John Doe as principal, and 
Houston County. j Richard Roe as security, both of said County, and 
acknowledge themselves held and bound to his Excellency Joseph E. 
Brown^ Grovernor of said State for the time being, and his successors 
in office, in the sum oi four hundred dollars ; subject to the following 
condition — 

The condition of the above obligation is as follows — whereas, a Bill 
of Indictment for Yagrancy, has been found, in the Superior Court of 
said County, against Richard Roe, of said County ; upon which Bill of 
Indictment said Richard Roe has not yet been tried. Now, should 
said Richard Roe be of Good Behavior, and industrious, for one year, 



JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 251 

next ensuing, then this obligation to be void ; otherwise, of force. 
This April 25, 1859. 

In open Court — John Doe, prinH. [L. S.] 

Wilh'am H. Miller^ Glerlc. Eichard Koe, sechy. [L. S.] 



Warrant for Rape, 

STATE OF GEORGIA, | Personally appeared before the undersigned, 
Houston County. j" one of the Justices of the Peace in and for said 
County, Betsey Clayhank^ spinster^ who being duly sworn, saith that 
John Doe^ in said County, on i\iQ first day oiMay^ eighteen hundred and 
fifty -nine^ on and upon the said Betsey Clayhanh^ violently and felon- 
iously did make an assault, and her the said Betsey Clayhanlc^ then and 
there, feloniously ravished and carnally knew ; against the will of her, 
the said Betsey Clayhanh, 

Sworn to and subscribed, "j Tier 

before me, this May 2, 1859. I BeTSEY ^ ClAYBANK. 

James Mack, J. P. ) mark. 

STATE OF GEORGIA, ) To John Jacohs^ one of the Constables of said 
Houston County. \ County, and to all lawful officers. 
Whereas, Betsey Clayhanh, spinster, hath complained on oath, before 
the undersigned, one of the Justices of the Peace in and for said Coun- 
ty, that John Doe, in said County, on \\iq first day of May., eighteen hun- 
dred and fifty-nine, on and upon the said Betsey Clayhank, violently and 
feloniously did make an assault, and her the said Betsey Clayhanh., 
(against the will of her, the said Betsey Clayhanh,) then and there, felo- 
niously ravished and carnally knew. These are, therefore, to command 
you to make diligent search for the said John Doe, and he being found, 
that you bring him before me, or some other Justice of the Peace for 
said County, to be examined touching the premises, and to be other- 
wise dealt with according to law. 

Witness my hand and seal, this May 2, 1859. 

James Mack, J. P. [L. S.] 



Recognizance with Sureties. 

STATE OF GEORGIA, j Be it remembered, that on the first day oi May, 
Houston County. j eighteen hundred d^nd fifty-nine, John Doe as prin- 
cipal, and Richard Roe as security, both of said County, personally came 
before the undersigned, one of the Justices of the Peace in and for said 
County, and acknowledge themselves to owe to his Excellency Joseph 
E. Broion, Governor of said State, for the time being, and his succes- 
sors in office, the sum of five hundred dollars, to be made and levied of 
their goods and chattels, lands and tenements, to the use of said State, 
if he the said John Doe, shall fail in the condition underwritten. 

The condition of the above obligation is as follows — whereas, said 
John Doe has been arrested upon a warrant, charging him with the 
crime of Adultery ; which warrant has been returned before James Mach, 
Esq., a Justice of the Peace, by whom said John Doe has been required 
to give security for his appearance before the Superior Court of said 



252 JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION". 

County : now, should tlie said John Doe^ well and truly be and appear 
at the next Superior Court to be held in said County, and from day to 
day, and from term to term of said Court, to answer said charge, and 
not^ depart from said Court without leave of said Court, then this obli- 
gation to be void ; otherwise, of force. 

Acknowledged before me — John Doe, prinH. [L. S.] 

James Maclc^ J. P. EiCHARD EoE, secHy. [L. S.] 

Backing Warrant, 

STATE OF GEORGIA, 5 To any lawful officer of said County to execute 
Bibb County. j and return. 

Witness my hand and seal, this May 1, 1859. 

EoBERT Thomas, J. P. [L. S.] 

Note. — Where a Warrant is issued for a party who is moving about from one county 
to another, any Justice (if the Peace of the county in which the accused may be found, 
has the right of Backing the Warrant ; and when the party is arrested, (if the offence be 
bailable,) he should be conveyed to a Justice of the County where he is arrested. If the 
offence be not bailable, or if he fails or refuses to give bail, then he is to be carried be- 
fore a Justice of the County, where the offence was committed. 

Examination of a Person accused of any Criminal Matter, to 
which he must not he sworn, 7ior coerced, 

STATE OF GEORGIA, | The examination of John Doe, of said County, 
Houston County. j" taken before the undersigned, one of the Justices 
of the Peace in and for said County, (or us, if the charge requires 
the attention of two Justices of the Peace,) the first day of May, eight- 
een hundred bjhI fifty-nine, in said County. The said John Doe being 
charged before the undersigned (or us) by Richard Roe, of said County, 
with the crime of Assault and Battery. The said John Doe, upon his 
examination now taken, says, [here insert the answers of the accused as he 
makes them.^ 

Before me (or us) — James Mack, J. P. John Doe. 

Note. — The Justice or Justices, before whom the examination takes place, should cau- 
tion the accused not to say any thing that would prove his guilt, or implicate him in 
any way. The answers must be voluntary. The accused may decline to answer if he 
prefers that course. This proceeding is intended to form an issue between the State and 
the party accused, not to ascertain his guilt. 

Information of a Witness, 

state of GEORGIA, | The evidence of Richard Roe, of said County, 
Houston County. j taken upon oath before the undersigned, one of 
the Justices of the Peace in and for said County, the first day of May, 
eighteen hundred and fifty-nine, in said County. Said Richard Roe 
having been sworn to speak the truth, the whole truth and nothing 
but the truth, of and concerning the accusation made before the under- 
signed, against John Doe, who stands charged with the crime of Assault 
and Battery, saith, that [here insert the answers of the witness.'] 

Before me — James Mack^ J. P. ElCHARD EoE. 



JUSTICE OF THE PEACE.— CRIMINAL JURISDICTION. 253 

Certificate of the Justice, 

STATE OF GEORGIA, ) To the Superior Court of said County. 

Houston County. J The undersigned, one of the Justices of the 
Peace in and for said County, hereby certifies, that the foregoing con- 
tains the proceedings in the case of the State against John Doe^ who 
was charged before the undersigned, with, the crime of Assault and 
Battery. 

Witness my hand and seal^ this May 2, 1859. 

James Mack, J. P. [L. S.] 

Note. — It is here mentioned, once for all, that the Warrant, the Examination of the 
Accused, the Information of the Witnesses, etc., certified by the Justice, must all be re- 
turned to the ensuing term of the Superior Court. Each of these requirements is es- 
sential. . . 

Rules of Law to he Carefully Observed, 

Note. — For the information of Justices of the Peace, it may be proper to point out, 
jir%t, for what crimes they cannot bail, but mu^t commit the Prisoner to Jail, if there be 
sufficient cause for commitment. Secondly, what crimes are bailable or not, according to 
their discretion. Thirdly, for what crimes they must let to bail, if sufficient surety is 
offered. Fourthly, in what cases two Justices, at the least, must sit together and con- 
cur in opinion, in order to let to bail. And, fifthly, when one Justice alone has power to 
hail. 

*^And, first. No Justice of the Peace can bail, 1, upon an accusation of Treason ; nor 2, 
of Murder ; nor 3, of Manslaughter, if the prisoner be clearly the slayer (and not barely 
suspected to be so) — or if an indictment be found against him ; nor 4, such as being com- 
mitted for Felony, have broken prison ; nor 5, Approvors, and persons by them accused; 
nor 6, persons taken with the Manor, or in the fact of Felony ; nor 7, persons charged 
with Arson ; nor 8, such as are charged with Counterfeiting ; nor 9, Thieves, openly de- 
famed and known. All these are clearly not admissible to bail by Justices of the Peace. 
—4 Black. Com. 298— Com. Dig. 469. 

" Secondly. — Justices of the Peace may or may not, at their discretion, let to bail in the 
following cases, to wit: Burglary, Larceny, Forgery, Perjury, Rape, Polygamy, Bestiality, 
Robbery, persons charged with other felonies or manifest and enormous offences, not be- 
ing of good fame. And accessories to felony, that labor under the same want of reputa- 
tion.— 4 Black. Com. 299. 

" Thirdly. — The last class are such as must be bailed if sufficient surety is offered, to 
wit : Persons of good fame charged with a bare suspicion of Manslaughter, or other in- 
ferior Homicide. Such persons being charged with Petit Larceny, or any felouy not be- 
fore specified ; or with being accessory to any felony. And all other persons charged 
with minor offences, as Assault, Battery, False Imprisonment, Adultery, Fornication, 
Riot, Rescue, Mayhem, Aftrays, Fraudulent-Mischief, Cheating, Swindling and, generally. 
Misdemeanors of all kinds. 

" Fourthly. — In cases of Manslaughter or Felony, bailable by law, two Justices at the least, 
must sit together and concur in opinion ; for one Justice alone has no power to bail. — 3 
Hen. VII., ch. 3. And some of the offences comprehended in the terra Felony here used, 
are Burglary, Larceny, Forgery, Perjury, Rape, Polygamy, Bestiality, Robbery, Man- 
slaughter, &c., <fec. And in all such cases the Justices are bound to take the examination 
of the prisoner and information of those that bring him, of the facts and circumstances 
of the felony, and put the same in writing, before any bailment or commitment made. 
And the said examinations and bail-bond, they must certify and send up to the next Su- 
perior Court for the County in which the crime was committed. — 1 Fhil. &f Mary, ch. 13. 
• — 2 (^ 3 Phil. Sf Mary, ch. 10. The Justices have also power under these statutes, to 
bind over all witnesses by recognizance, who know anything material to prove the 
felony, to appear at the next Superior Court, to give evidence on the trial. And such 
recognizances they must also certify and return to the Court, with the other proceedings. 
If the witnesses refuse to give bail or be bound over, the Justices may commit them to 
jail uniil they comply .—Ibidem. 

" Fifthly. — In all minor offences below the degree of Felony, one Justice of the Peace 
alone, may let to bail ; such for instance as Assault, Battery, Adultery, Fornication, 
Riot, Rescue, Affrays, Swindling, (Cheating, False-Imprisonment, Petit-Larceny and Mis- 
demeanors generally. 

•' And in all cases brought before Justices of the Peace, they have power to inquire 



254 JUSTICES' COUET.— CIYIL JUEISDICTION. 

into the facts and circumstances of the transaction ; and if they are satisfied from the 
evidence, either that no crime has been committed, or that the prisoner is clearly inno- 
cent of the charge, or that there is not sufficient cause of commitment, they may dis- 
charge him from confinement. — 4 Black. Com. 296 — 2 John. Rep. 203 — 1 Bac. Ahr. 610. 
And in such case, it is in their discretion to make the prisoner or the prosecutor, pay the 
costs. — Act of 1811. 

" It is not to be understood, however, that the Justice or Justices, are to exercise the 
province or functions of a jury, by weighing the evidence and deciding on the guilt or inno- 
cence of the prisoner : for if the Justices have any doubt, or think from the evidence, that 
there is probability of guilt, then he ought to be bailed or committed, according to the 
offence. 

" Justices of the Peace have power also, to bail persons who by law are bailable, not- 
withstanding that they have been committed, and are actually in jail. — 1 Com. Dig. 472." 
Schley's Dig. of Eng. Statutes. 

An Act to authorize the Justices of the Inferior Courts of this State, to 
exercise Criminal Jurisdiction. — Approved March 5, 1856. 
30. Sec. I. That from and after the passage of this act any justice of 
Inferior'court ^^^® inferior court of this State, may exercise the same criminal jurisdiction 
may exercise as is now exercised by a justice of the peace ; and the same powers, as to 
Crimin'l Juris- criminal matters, vested in a justice of the peace, shall be and is hereby 
diction. vested in a justice of the inferior court. 
Sec. II. [Repeals conflicting laws.] 



Justice of the 



JUSTICES' COURT. 

An Act to alter and amend the several Judiciary Acts now in force in this 
State, so far as relates to Justices' Courts. — Approved Dec. 14, 1811. 
Jurisdiction 32. Sec. I. Be it enacted., That from and after the passing of this act, 
of Justices' the justices of the peace in the respective company districts, or any one or 
^^^ ■ more of them, shall have authority and jurisdiction, to hear and determine all 
suits on any liquidated demand or account for any sums of money, not ex- 
ceeding thirty \fifty — see 81] dollars, by summons or warrant: Provided^ 
that no justice of the inferior court, clerk, sheriff or [practising attorney — 
repealed., see Attorney-at-Law,'] being a justice of the peace, shall try any 
Judgment, warrant, or give judgment thereupon, in any civil case whatsoever. And the 
said justices are hereby authorized and empowered to give judgment and 
Appeal al- award execution thereon : Provided nevertheless., that either party being dis- 
low'd and how satisfied, shall be allowed an appeal, on payment of costs and giving security 
entered. £^^. ^j^^ eventual condemnation money, within three days after judgment; 
[unable to pay costs may appeal by filing affidavit — see Judiciary'] or the 
Stay of party cast may stay the levy of execution for forty [sixty — see 82 and 83,] 
Execution, days, on payment of cost and giving security, within four days after judg- 
ment. But no stay of execution shall be allowed after an appeal trial, for a 
longer time than twenty days, [see 82 and 83 ;] in which case the security on 
the appeal, together with the security for the stay of execution, shall be liable 
Debts reduced for the debt and cost. And it shall be lawful for any person or persons, who 
may be has or have in his, her or their hands, any bond, note or account, which was 
recovered, g^w^^ f^j. a^y sum exceeding thirty dollars, and the amount of which has been 
reduced by any payment or payments, or off-sets, to uiq sum of thirty [fifty] 
Payment must dollars or under, and which payment or payments are endorsed on the back 
be endorsed, ^f g^^]^ bond, note or account. Or where any bond, note, account or other 
agreement, (gaming debts excepted,) which in its original exceeded the sum 
of thirty [fifty] dollars, but has been reduced by bond or bonds, note or 



JUSTICES' COURT.— CIYIL JURISDICTION. 255 

notes, although of equal date and payable at the same time, to a sum or sums 
under or of thirty {_fifty\ dollars each ; that then and in every such case, it 
shall and may be lawful for any person or persons, who has or have, in his, 
her or their hands, any such note or notes, bond, or bonds, or accounts, as 
aforesaid, to bring suit thereon in the justices' court in the district where the 
debtor or debtors may reside. And the justice or justices are hereby author- 
ized to give judgment for whatever sum in his judgment appears to be due. — 
{See 81.] 

33. Sec. II. All such appeals shall be tried before any one or more Appeals tried 
justice or justices in the company district in which the cause originated, by five by Jury, 
jurors, to be drawn, impannelled and sworn, as herein-after directed, and in no 

other manner whatsoever, whose verdict shall be final and conclusive between 

the parties, (except removed by certiorari ^^ Provided always^ that no Proceedings 

justice or justices of the peace shall hold any justices' court, or pass any judg- when and 

ment, in any civil case, or any other, on more than [one day in each month, where to be 

hut see 84,] which day they may appoint in their respective districts ; nor at ^^^* 

any other place than that specially mentioned in the warrant or summons; 

which place shall be as near central as convenience will admit ; which warrant Warrant or 

or summons shall be served by any constable of the district in which the de- Summons by 

fendant may reside, duly appointed and sworn to the faithful execution of his , whom and 

V J. J. n OTJIT RPTVPfl 

office ; either by giving a copy to the defendant in person, or by leaving a copy 
thereof at his, her or their usual and notorious place of abode •, at least ten [nme, 
see 68,] days before the day of trial. And it shall be the duty of the constable 
serving the summons or warrant, to make an entry of service thereon in writ- 
ing, and sign such return. — [Pleadings may he amended^ see 85.] 

34. Sec. III. Where a suit shall be instituted in any justices' court, on any How Joint- 
bond, note or other written obligation, subscribed by several persons living Obligors and 
in different counties or districts, the plaintiff shall have his option to institute Promissors, 
his suit in either of the counties or districts, and a copy of the original process f^J-e^t p-o." 
being served on either, or each, of said obligors or promissors, by an officer tricts or Coun- 
duly authorized, who shall make a return thereof, under his hand, to the per- ties, maybe 
son applying for such service, or the court from which the original issued. sued. 
And on such return being made, the justice or justices shall be authorized to 

enter up judgment against the several obligors or promissors, or either of them, 
who shall be summoned as aforesaid. 

35. Sec. V. In all cases brought before any justices' court, the best What evi- 
evidence the nature of the case will admit of, shall be required. Nor shall idence re- 
any person, plaintiff or defendant, be permitted to prove his or her account, quired, 
by his own oath, without first making oath in writing, that he or she hath "<^ ^^gn allowed 
other evidence whereby to establish the same, that is in his or her power to 

procure. And in all cases of mutual debts and set-off, the said justice or just- Sets-ofF. 

ices may enter up judgment for the defendant, where it shall satisfactorily 

appear that there is a balance due him or her ; and on good cause being shown Continuance 

on oath, by either party, the said justices may postpone the trial three when allowed. 

terms, and no longer. And where an execution is levied on property Claims. 

claimed by any person not a party to said execution, it shall be the duty of 

the constable to postpone the sale of such property, and make return thereof 

to the first court in said district : Provided, the person putting in such claim claimant 

shall [first make oath in writing, that said property " is not liable to said must make 

execution," see 59,] and shall also give bond and security in double the amount Affidavit and 

of such execution, which bond the constable is hereby authorized to take, pay- give Bond. 

able to the plaintiff in execution ; with condition to pay all costs and damages 

which he or she may sustain, in case it should appear such claim was frivolous 

and intended for delay only ; recoverable in any court having cognizance 

thereof. And it shall be the duty of the said court, to cause the right of prop- 



256 JUSTICES' COURT.— CIVIL JURISDICTION. 

Trial of Claim erty to be tried, at the next term, by five jurors, to be drawn and impannelled 
may be in like manner as appeals. And on good cause being shown on oath, the court 
contmued. ^^^y. postpone the trial for one term, and no longer. — '[But see 77.] 

Bail. 36. Sec. YI. The said justices shall have power and authority to hold to 

bail for debts within their jurisdiction, under such restrictions and regulations 
as prevail in the superior and inferior courts. — [See title Bail.] 
Witness must 37. Sec. VII. Any justice of the peace may issue summonses for wit- 
be subpoenasd. nesses resident within the county, in any case to be tried before him ; 
Defaulting which shall be served five days before the day of trial. And such witnesses 
Witness fined, s\m\l be subject to a fine not exceeding |10, for default, at the discretion 
' of said justice ; and, moreover, be liable to pay the party grieved, by 
action in any court having jurisdiction of the same, for any damages he 
may sustain by such default ; who may issue execution for the amount of 
Witness resid- said fine : Provided^ sufficient excuse shall not be made at or before the 
ing out of the j^gy^. court-day: Provided also^ that all witnesses duly summoned, and 
^^ mid ^ ^ attending said court, who may reside out of the district where such court 
may be held, shall receive seventy-five cents per day for their attendance : 
How many And provided also, that there shall not be taxed in the bill of costs, the 
witnesses paid. g-j.pgjjgQ Qf more than two witnesses to prove the same fact. And it shall 
attend ^^ ^^® duty of all persons summoned as aforesaid, to attend from time to 
time, until the cause shall be determined, or they be otherwise discharged 
Fines how by the court. And all fines shall be paid into the hands of the inferior 
disposed of. court, for the use of the county. And when any witness resides out of the 
Interrogato- county, whose evidence may be material for either party in any cause 
out executed P^^^^ii^Qj i^i said justices' court, it shall and may be lawful for the party 
and returned, wishing to obtain such testimony, to obtain a commission from the justice 
issuing the summons, first giving the adverse party, his agent or attorney, 
five days' notice, accom23anied with a copy of the interrogatories intended 
to be exhibited ; which commission shall be directed to any two or more 
freeholders, one of whom shall be a justice of the peace, to examine on 
oath, all and every such witness or witnesses. And such examination, 
when so taken, shall be sealed up by the commissioners and directed to the 
Party must magistrate by whom it was issued. And on returning the same shall 
swear on re- swear, that it has undergone no alteration from the time of his receiving 
turning the ^^ ^^ ^j^g commissioners — [see 79.] And the commission and interrogato- 
ries so issued, executed and returned, shall be read on the trial, at the in- 
stance of either party. 
Method of 38. Sec. YIII. The method of drawing jurors for the trial of appeals 
draw' g Juries, a^ (J all other cases in justices' courts, in each district, shall be as follows : 
The justice or justices residing in each captain's district, [in conjunction 
with commanding officers of said district — see 57 and 58,] shall once in 
every tw^o years, procure or make out a list of all persons liable to serve as 
jurors in the superior courts, who may be residents in their respective dis- 
tricts, and shall write the name of every person so liable on a separate 
piece of paper, w^hich shall be deposited in a box, in an apartment marked 
Number of No. 1, and shall draw therefrom, not less than five nor more than seven of 
Jurors to be the names, so before deposited, from time to time, to try the causes so 
drawn. depending before them ; which names so drawn shall be entered in a book 
by the justice presiding at the drawing thereof; and shall be deposited in 
an apartment of said box, marked No. 2. And after all the names are 
drawn from No. 1, they shall commence drawing from No. 2, and so on 
alternately : Provided^ that no justice shall presume to draw any jury, but 
on a court-day, and in public, and by a person not interested in any suit 
Defaulting to be tried by said jury. And any person so drawn and summoned by a 
'^^^°^ ™'^y ^^ constable, five days before court, neglecting to appear, shall be fined by 



JUSTICES' COURT.— CIYIL JURISDICTION. 257 

the justice or justices, in a sum not exceeding three dollars, unless sucli 
juror shall show sufficient cause of excuse, on oath, at the next term. And J^^y how 
in all cases of deficiency of jurors, the constable, by the direction of the ^ "P* 
justices, shall fill and complete such jury from the by-standers : Provided^ Fee of Jury ; 
there shall not be less than three of the original pannel on such jury ; and^ P^^^* 

they shall, for every verdict by them given in, be entitled to twenty-five 
cents, to be paid by the party in whose favor such verdict may be given, 
and to be taxed in the bill of costs. 

39. Sec. IX. The oath to be administered to the jury, on the trial of Oath of Jury, 
appeals ; also, for the trial of the right of property, and on a traverse trial 

in justices' courts, shall be as follows : " You shall well and truly try the 
cause now pending between A B, plaintiff, and C D, defendant, and a true 
verdict give, according to equity, and the opinion you entertain of the 
evidence produced to you ; to the best of your skill and knowledge, with- 
out favor or affection to either party ; provided the case is not withdrawn 
— so help you God." 

40. Sec. X. i&ee 26.] Bond, note, 

41. Sec. XL ISTo person shall be permitted, in any trial in said justices' .^*^'.',™"^* ^? 
court, to deny his bond, note, or bill, for money or other thing, unless jj^ writing, 
such person shall first make oath, in writing, to the truth of such denial. 

42. Sec. XII. In case any person or persons, after being summoned to Defendant re- 
answer any complaint for debt, before any justice of the peace, shall before moving before 
the sitting of such court, remove out of the district, such justice may ^^" f'-fter Judg- 
nevertheless, give judgment against him, her or thein. And if any person ^^ proceed 
shall, after judgment of such court, remove out of the district or county, 

before satisfaction made, such justice may, in either case, issue execution 

against such person or persons ; which execution being backed by any 

justice of the county, where such person or persons, or his, her or their backing Exe- 

property may be found, may be levied by any lawful constable of said 

county. 

43. Sec. XIII. If any person or persons shall live or reside within any r^^^ ^ g. j.^. 
county or district, for the space of ten days, the same shall constitute asidence gives 
sufficient residence so as to authorize the justices of said county or dis- Jurisdiction, 
trict, to proceed against him, her or them, before any company district ^^. Justice, an 
court, as herein-before pointed out, for all debts within their jurisdiction. ^^^•°g"{.^^*^^J*^" 

44. Sec. XIV. In case there be no justice of the peace resident in anyj^g^j^^g ^ p^^. 
captain's district, then it shall and may be lawful for a justice, in any ad- ty, case to be 
joining district, to proceed in like manner, as if the defendant was an in- tried in near- 
habitant of his district. And all cases in which a justice of the peace may ^^^ Court. 
be a party, shall be tried in the nearest justices' court to the residence of 

the defendant, in said county, and not within the district in which he may 
reside. 

45. Sec. XV. The justices of the peace of the respective counties, shall be, Justice indict- 
and they are hereby declared to be liable to prosecution and trial, by indict- able for mal- 
ment, for mal-practice in office. And it shall be the duty of the attorney org Practice, 
solicitor-general, on complaint made to them, or either of them, on oath, by prosecute, 
any person or persons, to frame and prefer a bill of indictment to the grand 

jury of the county, in which the justice or justices complained of may reside, 
containing the merits of the complaint, specially set forth. Which indictment, Indictment 
if found by the grand jury, after hearing the evidence and the parties, shall be liow tried, 
tried by a petit jury. And if convicted on such indictment, the judgment of Punishment, 
the court may extend to fine and removal from office, or either, at discre- 
tion \of the court.] — [And see Cobb's Penal Code^ 119.] 

46. Sec. XVI, When it shall appear by the return of a constable, on any^.^^urity pay- 
execution or executions, that the same has been paid by a security or securi- l°^ha 

17 trol of it. 



258 JUSTICES' COURT.— CIYIL JURISDICTION. 

ties, it shall be the duty of the justice or justices, to make an entry thereof in 
their docket book. And such security or securities shall have the use and con- 
trol of said execution or executions, for the purpose of remunerating him, her 
or themselves, out of their principal, although such execution may have been 
levied and property sold to satisfy the same. — [See 62.] 
Constable 47. Sec. XVII. It shall be the duty of constables to advertise all intended 
must adver- sales, at two or m^ore of the most public places in their proper district, [and 
tise his sale , ^^ ^^^ ^^ more of the most public places in the county ; see 71] at least fifteen 
^^^where. days before any sale ; and shall give a full and clear description of the prop- 
Sales when erty to be sold. And all constables' sales shall be at the place of holding 
and where justices' courts in the several company districts, and on a court-day, and 

made. ^^isLt between the hours of ten and three [four] o'clock. 

Negroes and 48. Sec. XVIII. No constable shall be authorized to levy on any negro 

Land not to or negroes, or real estate, unless there is no other personal estate to be found, 

be levied on, sufficient to satisfy the debt, [but see tO,] and then, and in that case, they are 

bat under cer- j^^^.^i^ authorized to levy on the same wherever to be found, and deliver over 

' stances. ^^® execution or executions to the sheriff of the county, with a return of the 

property levied on, who shall proceed to sell the same, with such formalities 

as are prescribed for the sale of real estates. 

.Judgment of 49. Sec. XIX. All judgments which may be obtained in, and executions 

equal dignity issued from any justices' court, after the passing of this act, shall bear equal 

with those dignity with judgments obtained in, and executions issued from the superior 

T f "^C^urts ^^ inferior courts; and shall bind all the property of the defendant, from the 

What prop- date of said judgment ; and also, all the property of his, her or their securi- 

erty bound, ties, from the time of their entering themselves as such, until the same shall be 

satisfied. 
Compensation 50. Sec. XX. A reasonable compensation shall be allowed to constables, 
may be allow- for carrying property levied on, to the place of sale, when there appears an 
ed Constable, ^l^g^l^j.^ necessity for so doing, to be judged of by the justice or justices resi- 

services. ^®"^ '^^ ^^'^ district. 

Constables 51. Sec. XXI. it shall be the duty of the constables of the several districts, 
must levy all to levy all executions put into their hands, agreeably to the tenor thereof, and 

fi.fas.-gni ^Q make due returns of the same, together with all summonses or warrants, 

into their ^ o ^ 7 

hands ^^ ^^® court to which they may be made returnable. And if any constable 

Neglect of shall fail to execute and make returns, or pay to or account with any person 

duty how for whom he may have received money on any execution, within ten days 

punished, after the reception thereof, the person, so injured, as aforesaid, may upon 

application to any justice within the district where said constable may reside, 

(and in case there should be no justice in said district, then an application to 

a justice in any adjacent district,) whose duty it shall be to grant a w^arrant to 

such applicant against such constable. And such justice shall, upon proof 

thereof, award judgment and execution for the same and all cost, against such 

constable; and also, fine him for such abuse, in a sum not exceeding ten per 

cent, on the amount so withheld. And in case of neglect or refusal to serve 

and return any warrant or summons, as aforesaid, may fine the constable so 

offending, in a sum not exceeding the amount of the debt due by the defendant. 

Anfi subject And all constables shall, moreover, be subject to be prosecuted and tried for 

to prosecii- mal-practice in office, in like manner as herein pointed out for justices of the 

peace ; and liable to like pains and penalties. 

52. Sec. XXII. [Superseded by Fee MIL] 

Parties -may 53. Sec. XXIII. In future any person or persons who may institute any 

settle or suit or suits, in any justices' court, shall be at liberty to settle or withdraw the 

withdraw same, at any time, on payment of the cost which may have already accrued. 

Fi fa return- ^'^^ ^^ ^^^ cases where execution or executions may issue, and being returned 

ed " no .priop- with an entry of service thereon, " no property to be found whereon to levy," 



JUSTICES' COURT.— CIYIL JURISDICTION. 259 

the plaintiff is herebv liable and bound for the cost, and that on refusal to pay ^f& , i i'^' 
^L • * • ^ .1 -J J ' 1 .T 1 . •A- *^ tiff liable for 

the same, execution may issue lor the said amount, against the said pJaintiii. costs. 

54. Sec. XXV. It shall be lawful for any constable of the county, to serve Who may act 
any warrant or summons wherein any justice of the peace or constable may be'^^^^re Justice 
a party, and to summon any witnesses, and to serve any bail-warrant or at- ^^ Nonstable 
tachment, and to make due return thereof to the court to which the same may 

be made returnable. And where it may so happen that there is no constable No Constable 
in the district, it shall and may be lawful for any constal>le in the county, to i^i district, 
act in the said district, in all respects as if such constable had been appointed ^^^ ™^y ^^** 
for said district. 

Sec. XXVI. [Appointment of constables — see 10.] 

55. Sec. XXVII, The justices of the peace of the several districts, shall have justices may- 
power during the sitting of their respective courts, to fine or imprison any per- fine or impris- 
son or persons for contempt of said courts, to be adjudged by the said justice oQjfor Con- 
or justices, in any sum not exceeding $2, or imprisonment for a term not ex- tempt ot 
ceeding two days, for each offence ; whicii said fine, when collected, shall be 

paid over into the hands of the inferior court for county purposes. 
Sec. XXVIII. [Repeals all conflicting laws.] 

An Act to repeal so much of the eighth section of an act '* to alter and amend 
the several Judiciary acts, now in force in this State, so far as relates to 
Justices' Courts," approved December I4th, 1811, that requires the Com- 
manding Officers of each District, to assist in drawing juries in Justices' 
Courts. — Approved Dec. 21, 1857. 

56. Sec, I. That so much of the above-recited act as requires the com- Part of the 
manding officers in each captain's district, to act in conjunction with the justices Act of 1811 
of the peace, in drawing juries, be and the same is hereby repealed. repealed. 

5t. Sec. II. That the justices of the peace, in each district, shall have full j ^i-nQsto 
power to meet and revise the jury-box, and draw juries for their courts, with- (ji-^^ Juries 
out the presence of the commanding officer of said district. — [jSee next Act.J^ etc. 

Sec. III. [Repeals conflicting laws.] 

An Act to alter and amend the eighth section of an act passed the 14th 
December, 1811, so far as relates to drawing Jurors in Justices' Courts, 
by the Justice or Justices residing in each Captain's District, in conjunction 
with Commanding Officers of said District. — Approved Dec. 22, 1857. 

59. Sec. I. That from and after the passage of this act, the justice or jus- How Juries to 
tices residing in each militia district, in conjunction M'ith two freeholders of be drawn in 
said district, shall draw iurors in iustices' courts of this State, as now provided Justices' 
bylaw. ' ^ Courts. 

Sec. III. [Repeals conflicting laws.] 

Act of November 23, 1814. 

60. So much of the Vth section of the above-recited [the Act of 1811] act, part of 5th 
as requires persons claiming property under execution, not a party to such sec. of act of 
execution, to make oath that such property " is not liable to such execution," be ^^ll, re- 
and the same is hereby repealed. And in all cases of executions from any jus- Oath^of^per- 
tices' court in this State, levied on property claimed by any person not a party son claiming 
to such execution, such person shall make oath that such property levied on, property, 
is his or their right and property, or his or their property, as attorney, agent, 
guardian, executor or administrator, as the case may be — to the best of his, 

her or their knowledge and belief; and shall, moreover, give security in terms 
of the said Vth section. 



260 JUSTICES' COURT.— CIVIL JURISDICTION. 

Warrant or Summons. 
STATE OF GEOEGIA, ) To any lawful officer to execute and return. 
Houston County. j ])ebt in Justices' Court, 619th District Georgia 
Militia. 

John Doe vs. Richard Roe. — The Defendant of said District, is here- 
by required, personally, or by attorney, to be and appear at the Jus- 
tices' Court, to be held at Perry ^ in, and for the 619th District, G. M. 
on thej^r^^ Saturday in June next^ hj ten o'clock in the forenoon, to 
answer the complaint of the Plaintiff on an Account^ a copy of which is 
hereunto annexed. In default hereof the Court will proceed as to 
justice shall appertain. 
Witness my hand and official signature^ this May 1, 1859. 

James Mack, J. P. 

Note. — A copy of the paper sued on should be annexed to the summons. 

Copy of the Account filed. 

1858. Richard Roe to John Doe, Dr. 

June 1, 4 lbs. Tobacco . . , $1 00 

10 do. Sugar 1 00 

. 20 do. Coffee 3 00 

$5 00 

Note. — The Justice issuing the Summons should be careful to state in the Summons, 

Judgment and j^./a, the character of the Defendant as Security, Endorser, etc., in all 

actions upon Notes, Bonds or other instruments in writing ; where either of the parties 

appear as such upon the contract. 

Cases in which Justices of the Peace are parties *' must be tried in the nearest Justices' 
Court to the residence of the Defendant.'' In such cases the Summons should commence 
thus: ^^ John Doe, Justice of the Peace, in and for the 618th District, G. M., in said 
County," etc. And where there are two or more Defendants residing in different Dis- 
tricts or Counties, add to their names the respective Districts or Counties of their resi- 
dence, thus: ''Richard Roe, of said District and County; Fphraim Boyd, of the 620th 
district, G. M. in the County aforesaid, and Nehemiah Strut, of the County of Pulaski and 
State aforesaid ; are" etc. 

Return of the Constable. 

Served a copy of this Summons on the defendant, per5(9na%. This 
May 2, 1859. 

John Jacobs, Constable. 

Subpcena for Witness. 

STATE OF GEORGIA, ) To John Smith — You are hereby required, that, 
Houston County. j laying all business aside, you be and appear at 
the Justices' Court, to be held in and for the 619th District, Gr. M., 
on l\iQ first Saturday in June next., by ten o'clock in the forenoon, to 
be sworn as a Witness for the Plantiff^ in a case pending in said Court, 
in which John Doe is Plaintiff, and Richard Roe is Defendant. Herein 
fail not, under the penalty of the law. This May 1, 1859. 

James Mack, J. P. 

Plea of the Defendant. 

And now comes the Defendant, in person^ and for Answer to the 
Plaintiff's action, says : That he is not indebted to the Plaintiff, by 



JUSTICES' COURT.— CIVIL JURISDICTION. 261 

Account or in any other manner, and of this he puts himself on the 

Court and country. This June 10, 1859. 

KiCHARD EoE. 

Note. — If the Defendant has any special matter of Defence, he must set it out in his 
Plea, plainly, fully and distinctly. 

Oath of the Plaintiff to Prove his Account. 

STATE OF GEORGIA, | In open Court comes John Doe, who, being 
Houston County. j duly sworn, says, that he has no other evidence, 
(which is in his power to procure,) whereby to establish his Account 
against Richard Roe^ now sued upon ; and therefore, he is compelled 
to prove the same by his own oath. This July 10, 1859. 

Sworn to and subscribed, i 
in open Court, before me. > JOHN DoE. 

James Mack, J. P. ) 

Note. — After the above AfiBdavit has been made by the Plaintiff, (which must be in 
writing,) he is, by the Court, to be sworn as a witness and examined as to the correct- 
ness of the Account ; after which the Defendant has the right to cross-examine him, for 
he is a witness in the case. 

An Act to allow parties in Justices' Courts to prove open Accounts when the 

same does not exceed fifty dollars, &c. — Approved Dec. 22, 1857. 

Whereas., the Legislature, at its last session, passed an act giving to Justices of 
the Peace jurisdiction over ail sums not exceeding fifty dollars, principal and 
interest. A7id whereas, the act of December 27th, 1842, limits the amount 
on open Accounts, to be proven by parties in Justices' Courts, to thirty dol- 
lars, thereby causing litigation and consequent delays, resulting from the 
seemingly contradictory statutes ; for remedy whereof — 

61. Sec. I. Be it enacted., That from and after the passage of this act, it Accounts of 
shall and may be lawful for parties, plaintiff or defendant, in any case in the collect- 

Justices' Courts of this State, to prove open accounts in the same manner as 
heretofore prescribed by law, provided the amount does not exceed the sum 
of fifty dollars. 

Sec. VII. [Repeals conflicting laws.] 

Judgment of the Court. 

Whereupon, it is considered by the Court here, that the Plaintiff 
do recover against* the Defendant, the sum oi jive dollars, for his 
principal debt; the sum o^ one dollar and twenty-Jive cents, for his 
costs in this behalf, laid out and expended. And the Defendant in 
mercy, etc. Judgment signed, this July 10, 1859. 

James Mack, J. P. 



The Usual Form, {held to be sufficiejit.) 

Judgment for the Plaintiff for $5 principal, with interest, from this 
July 10, 1859. 

James Mack, J. P. 

Note. — The above entry is usually made by the Justice on his Docket opposite the 
case. 

In entering up Judgment, where either of the parties shall make it appear, (or it ap- 
pears on the paper sued on,) " that he, she or they, signed said obligation, as a security, 
or securities only, it shall be the duty of the Justice to enter up Judgment against him, 
her or them, as such, and award Execution in the same manner ; which, when satisfied 
by such security, (or out of his property,) he, she or they shall have the control and ben- 
efit of said Execution, for the purpose of remunerating him, her or themselves, out of 
their principal. 



262 JUSTICES' COURT.— OIYIL JURISDICTION. 

Appeal Bond given by the Defendant. 

GEORGIA— ^0 JJSTOJSr COUJS'TY. 

JOHN DOE ) Case in Justices' Court for 619th District, G. M. 
mCHAKD ROE. j Judgment for Plaintiff for $5, with costs. 

The Defendant being dissatisfied with said Judgment, and having 
paid the costs, demands an Appeal, and brings John Jones as his secu- 
rity ; and they bind themselves to the P/am^?^ for the eventual con- 
demnation money. 

Witness their hands and seals, this July 13, 1859. 
Approved — Richard Roe. [L. S.] 

James MacJc, J. P. John Jones. [L. S,]. 

StaT/ of Execution. 
GEORGIA— ^O USTOK COUNTY. 



JOHN DOE 

vs. 

RICHARD ROE 



Case in Justices' Court for 619th District, G. M. 
Judgment for Plaintiff for $5, with costs. 

The Defendant comes forward, pays the costs, demands a stay of Exe- 
cution, and brings John Jones as his security ; and they bind themselves 
to the Plaintiff for the amount of said Judgment, according to the 
statute. 

Wit7iess their hands and seals, this July 14, 1859. 

Approved — Richard Roe. [L. S.] 

James MacJc, J. P. John Jones. [L. S.] 

Affidavit to Appeal without paying Costs or giving Security, 
> GEORGIA— JTOro'T^OA^ COUNTY. 
/ Case in Justices' Court for 619th District, G. M. 

vs. \ ^ ' 

RICHARD ROE. ( Judgment for Plaintiff for $5, with costs. 

Personally came before me, a Justice of the Peace for said County, 
Richard Roe, who being sworn, says that he is advised and believes 
that he has a good cause of Appeal, in the above stated case, and that, 
owing to his poverty, he is unable to pay the costs and give the secu- 
rity, as now required by law. 

Sworn to and subscribed, i 

before me, this July 13, 1859. > RiCHARD ROE. 

James Mack, J. P. ) 

Note. — This oath must be in writing, and must be filed among the papers of the 
case. 

Names of the Jurors to he Summoned, 

STATE OF GEORGIA, 1 rr, t n -r 7 ^ ,77 r 1 n^r^.i r^' . • ^ n nr 
„ . r. ^ )■ To John Jacobs, Constable of the Ql^th District (jr. M. 
Houston County. j ) j ' 

You are hereby authorized and commanded to summon James West^ 



JUSTICES' COURT.- CIVIL JURISDICTION. 263 

Thomas M, Bix^ Williavi House^ Asa T. Walch^ Marcus Kuiize^ Jacob 
Snider and Samuel Felder^ to be aad appear at the Court-House, in and 
for the aforesaid District, on the twelfth day of August next, by ten 
o'clock in the forenoon, for the purpose, then and there, of being sworn 
as Jurors, in said Court. This JuIt/ 10, 1859. 

James Mack, J. P. 

Thomas Hall, J. P. 

Note. — The practice is, for the Justice to draw the names of the Jurors from the Jury- 
Box, and to enter them on his Docket ; a list is then furnished the Constable, and he no- 
tifies each. Juror. 

Summons for Jurors. 

STATE OF GEOKGIA, | To Samuel Felder—AppesiY at the Court-House, 

Houston County. j" in and for the 619th District, G. M., on the twelfth 

day of August next, by ten o'clock in the forenoon of that day, to be 

sworn as a Juror in said Court. Herein fail not. This July 10, 1859. 

John Jacobs, Constable. 

Note. — The Constable should make out a separate Summons for each Juror, and be 
careful to serve it five days before the Court, at which the Juror is required to appear. 
For the Oath to be administered to the Jury, see No. 39 of this Title. 

Verdict of the Jury. 

We, the Jury, find for the Plaintiff, the sum oi five dollars for his 
principal debt, and the costs of suit. This August 12, 1859. 

Marcus Kunze, Foreman. 

Writ of Fieri Facias. 

state of GEOKGIA, \ To all and singular the Constables of said 

Houston County. j" County — Greeting. 

We command you, that of the goods and chattels, lands and tenements 
o^ Richard Roe^ principal, and John Jones, security on appeal^ you cause 
to be made the sum of five dollars, principal debt, and two dollars and 
fifty cents costs ; which John Doe, on the teiith day of July, eighteen 
hundred and fifty-iiine, in the Justices' Court, in and for the 619th Dis- 
trict, Gr. M. in said County, recovered against said Defendants, for his 
principal debt and costs. And have the said moneys before the said 
Court, on the first day of the next ensuing term thereof, to render to 
the said John Doe, for his debt and costs, aforesaid. And have you 
then and there this Writ. 

Given under my hand and official signature, August 15, 1859. 

James Mack, J. P. 

Levy by the Constable on the back of the fi. fa. 

Levied i\i\sfi.fa. on a Black Horse, as the property of the Defend- 
ant, this September 10, 1859. 

John Jacobs, Constable. 

Note. — If the Constable, at the instance of the Defendant, levy the Execution on Lands 
or Negroes, he should state in his levy, " property pointed out by the Defendant." If 
he is compelled, for want of other property, to levy the fi. fa. on Lands or Negroes, he 
should make an entry of that fact as part of his levy, thus : " There being no other 
property on which to levy this^./a., I have levied the same on a iV^c^ro ^oy named Sam." 
This September 5, 1859. 

John Jacobs, Constable. 



264 JUSTICES' COURT.— CIYIL JURISDICTION. 

Constables^ Advertisement, 

STATE OP GEORGIA, | Qn the tenth day of October next, between the 
Houston County. j" lawful hours of Sale, will be sold before the 
Court-House door, in the 619th District, G. M. a certain Black Horse^ 
five years old, sixteen hands high, in fine order and well hrohe. Levied 
on as the property of Richard Roe to satisfy a fi. fit. issued from the 
Justices' Court, in and for said District, in favor of John Doe, against 
said Richard Roe. This September 10, 1859. 

John Jacobs, Constable, 

Note. — Constables' Sales must be made " on the first day of each Court." — See 84. 

Constables'' Bill of Sale. 

STATE OF GEORGIA, | Keceived of Samuel Felder, fifty ^ dollars for a 
Houston County. j" certain Black Horse^ levied on by virtue of ^fi.fa. 
issued from the Justices' Court, in favor of John Doe^ against Richard 
Roe^ and which Black Horse was this day sold, as the property of said 
Richard Roe. This October 10, 1859. 

John Jacobs, Constable. 
Backi?ig an Execution. 

STATE OF GEORGIA, ) rn ^ n ^ nc> 1 . 

Chatham County. \ ^o any lawful officer, to execute and return. 

Given under my hand and official signature^ this December 1, 1859. 

Willis Stone, J. P. 

FORMS m CLAIM CASES. 
Affidavit of the Claimant. 

STATE OF GEORGIA, ) In person appeared before the undersigned, a 
Houston County. j Justice of the Peace in and for said County, 
James Wall, who being duly sworn saith, that a certain Black Horse 
levied on as the property of Richard Roe, by virtue of a fi. fa. issued 
from the Justices' Court for the 619th District of said County, in favor 
of John Doe, is the right and property of deponent, to the best of his 
knowledge and belief. 

Sworn to and subscribed, ] 
before me, this Sept. 10, 1859. \ JaMES WaLL. 

James Mack, J. P. ) 

Note. — This affidavit may be made by an Attorney, Agent, Guardian, Executor or Ad- 
ministrator, as the case may be ; in which case, it should be so stated in the affidavit ; 
thus, " but is the property of deponent as Guardian of John Smith, a minor, to the best 
of his knowledge and belief." 

Where the fi. fa. has been levied on a slave, who is claimed, ''such Execution and 
Claim shall be returned to the next term of the Superior or Inferior Court, whichever 
may first happen, of the County in which such Execution was issued." 



JUSTICES' COURT.— CIYIL JURISDICTION. 265 

Bond given hy the Claimant. 

STATE OF GEORGIA, ) We, James Wall as principal, and Alexander 
Houston County. j Lee as security, both of the State and County 
aforesaid, acknowledge ourselves held and bound to John Doe^ in the 
sum oi fifty dollars, subject to the following condition — 

The condition of the above obligation is as follows — whereas, John 
Jacobs^ one of the Constables of said County, has levied an execution, 
(issued from the Justices' Court of the 619th District, G-. M.) in favor 
of John Doe^ against Richard Roe^ on a certain Black Horse^ as the prop- 
erty of said Richard Roe^ and which Horse has been claimed by said 
James Wall. Now, should said James Wall well and truly pay the 
PlaintifF-in-execution, all costs and damages which he may sustain, in 
case it should appear such claim was frivolous and intended for delay 
only, then the above obligation to be void ] otherwise, of force. This 
September 10, 1859. 

Attest — " James Wall, jprinH. [L. S.] 

James Mack^ J. P. Alexander Lee, secHy. [L. S.] 



Forthcoming Bond in Claim Case. 

STATE OF GEORGIA, | We, James Wall as principal, and Thomas West 
Houston County, j ^g security, acknowledge ourselves held and bound 
unto John Doe^ of said County, in the sum of one hundred dollars ; 
subject to the following condition — 

The condition of the above obligation is as follows — whereas, John 
Jacobs^ Constable, has levied an execution (issued from the Justices' 
Court of the 619th District, G. M.) in favor of John Doe against Richard 
Roe^ on a certain Black Horse^ and which Horse has been claimed by 
said James Wall. Now, should said JamesWall, well and truly, de- 
liver said Horse, to the said Constable, at the time and place of sale, 
provided said Horse should be found subject to said execution, then 
this obligation to be void ; otherwise of force. This September 10, 
1859. 

Attest — James Wall, 'prinH. [L. S.] 

James Mack, J. P. Thomas West, secHy. [L. S.] 

, Note. — The amount of the Bond "shall be in double the value of the property levied 
upon, to be estimated by the levying officer." And it must *' be payable to the Plain- 
tiff." When the Bond is given, it is the duty of the levying officer to leave the property in 
the possession of the Claimant. 



PROCEEDINGS AGAINST DEFAULTING WITNESS. 

Order Nisi. 
' I In Justices' Court, 619th District, Georgia Militia. 
EICHAEDEOE. j July Term, 1859. 
It appearing to the Court by the return of John Jacobs, Constable, 



266 JUSTICES' COURT.— CIVIL JURISDICTION. 

that William Thomas was duly summoned as a witness in tbe above 
case, (on tlie part of the Plaintiffs) to attend at the present term of the 
Court. And said William Thomas having failed to attend, as afore- 
said ; it is, therefore ordered, that said William Thomas show cause 
at the next term of this Court, why he should not be considered in 
contempt of the process of the Court. 

Given under my hand and official signature^ 

James Mack, J. P. 



Answer of the Witness. 

STATE OF GEORGIA, ) In answer to a rule Nisi from the Justices' 
Houston County. \ Court, in and for the 619th district, G. M., 
calling upon respondent to show cause why he should not be con- 
sidered in contempt of the process of said Court, for not attending as 
a witness in the case of John Doe^ against Richard Roe^ at the July term 
of said Court, after being duly sworn, respondent saith, that it was not 
convenient for him to attend said Court^ at said term ; that respondent was 
required to attend in the city of Macon, on that day, to urgent business of 
his own. All which is respectfully submitted, this August 10, 1859. 

Sworn to and subscribed. ? WiLLIAM ThOMAS. 

before me. John Boss, J. P. ) 

Rule Absolute. 
JOHN DOE \ j^ ^^^ Justices' Court of the 619th district, G. M. 
RICHARD ROE. j August Term, 1859. 

A rule Nisi against William Thomas^ having issued in the above 
case, requiring said William Thomas to show cause why he should 
not be considered in contempt of the process of said Court, (he having 
been subpoenaed as a witness to testify in a case pending in said Court, 
and having failed to attend,) and the cause submitted by said William 
Thomas s for his default, being adjudged unsatisfactory and insufficient ; 
it is ordered that said rule Nisi be made absolute — that said William 
Thomas be and he is hereby fined in the sum of ^en dollars, for contempt 
of the process of the Court, and the costs of these proceedings. 

James Mack, J. P. 



Note. — All the papers in the above proceeding should be carefully filed away by the 
presiding Justices of the Court. 

% 
INTERROGATORIES. 

Commission, 

STATE OF GEORGIA ) ^J James Mac\ one of the Justices of the 
Houston County. ' \ ^^ace for the 619th district, G. M. To 
) — Greeting: 

Whereas, there is a certain matter of controversy, now pending in 



JUSTICES' COURT.— CIYIL JURISDICTION. 267 

the Justices' Court of the 619th district, Georgia Militia, in the County 
aforesaid, between John Doe and Richard Roe. And whereas, John Smith 
is a material witness in said suit, and resides out of the aforesaid County, 
and cannot attend our said Court, without manifest inconvenience. 

Now, know ye, that we, reposing special trust and confidence in 
your prudence and fidelity, have appointed you ; and you, or any two 
or more of you, (all being freeholders and one of you a Justice of the 
Peace,) are hereby authorized and required to cause the said John 
Smithy personally, to come before you, and after he is duly sworn, to 
examine him concerning the said suit, agreeably to the Interrogatories 
hereunto annexed. And the answers to the same being plainly and 
distinctly written, you are to send the same closed up, under your 
hands and seals, to our said Court, to be held on the twelfth day of 
August next, together with this writ. 

Witness ray hand and official Signature^ this July 10, 1859. 

James Mack, J. P. 



Direct Interrogatories, 

JOHN DOE, ^ Q^gg -^ the Justices' Court, 619th District, Georgia 
EICHARD ROE. ) Militia, Houston county. 

Interrogatories to be exhibited to John Smithy a material witness on 
the part of the Plaintiffs and who resides out of the said County of 
Houston. 

1st. Do you know the parties in the above-stated case ? 

2d. Please state all you know, of your own knowledge, or have 
heard the Defendant say, going to show that he owed the Plaintiff 
money ; when and where was the statement made ? 

8d. How much did the Defendant say he owed the Plaintiff? 

4th. State fully and at large all you know that will benefit the Plain- 
tiff in the trial of said case, as if particularly interrogated thereto. 

John Doe, Plaintiff. 



Note. — Notice and copy of the Interrogatories filed, must be served on the Defendant, 
unless he will consent that Commission shall issue immediately, in which case the follow- 
ing entry should be made on the back of the original Interrogatories : " Copy and Notice 
of those Interrogatories waived — let Commission issue upon application. This July 20, 
1859/' Rich AKD Roe, Z)e/'^, 

If the Defendant refuses to agree to the above course, which is usual in practice, the 
Plaintiff should serve him" with a copy of the Interrogatories, and annex to the copy the 
following notice : '• Bichard Roe— You are hereby notified that I have, this day, filed in 
the office of James Mack, Justice of the Peace, original Interrogatories, of which the fore- 
going is a copy, and that I shall apply for Commission, to take the testimony of the wit- 
ness in said Interrogatories named, in terms of the statute in such case made and pro- 
vided. This July 20, 1859." John Doe, PVt '/. 

If the latter course has to be pursued, the original Interrogatories must remain, (after 
copy and notice served,) five days in the office of the Justice of the Peace, before Com- 
mission can issue. 

Cross Interrogatories. 

1st. Did not the Defendant say, in the conversation of which you tes- 
tify, that he had paid the Plaintiff all the money he ever owed him ? 

2d. Do you not know, from what you have heard the Plaintiff say, 
that the Defendant has paid him all the money he ever owed him ? 



268 JUSTICES' COURT.— CIYIL JURISDICTION. 

3d. State all you know that will benefit tlie Defendant, as if particu- 
larly interrogated thereto. Eichard Eoe, Deft. 

Answers to the Direct Interrogatories. 

JOHN DOE ] 

■i^s. >- Suit in Justices' Court, 619th District, Houston County. 

RICHARD ROE. ) 

STATE OF GEORGIA, ) By virtue of a Commission to us directed, from 
Twiggs County. | the Justices' Court of the 619th District, Georgia 
Militia, {Houston County,) we have caused John Smithy the witness 
named to come before us, and being sworn true answers to make, to 
certain Interrogatories to said Commission annexed, he answers as fol- 
lows, to wit — 

To the Is;! Direct Interrogatory — '' I do know the parties." 
To the 2d Direct Interrogatory — "I was at Perry on Saturday the 
first day of June last, and in a conversation with the Defendant, he ad- 
mitted he owed the Plaintiff fifteen dollars on an account for the year 
1858." 

To the 8<i Direct Interrogatory — •' I know nothing more that will 
benefit the Plaintiff." 



Answers to the Cross Inter rogatories. 

To the l5^ Cross Interrogatory — " If in our conversation, the De- 
fendant said he had paid the Plaintiff, I do not recollect it — I did not 
so understand the Defendant." 

To the 2d Cross Interrogatory — " I do not recollect having heard 
the Plaintiff say, at any time, that the Defendant had paid him all the 
money he ever owed him." 

To the 3c? Cross Interrogatory — "I know nothing that will benefit 
the Defendant." 

Answered, subscribed, and sworn) JOHN SmITH. 

to, before us, this July 25, >• 
1859. ) 

John Jackson, ComW. 

James Jones, Corner. 

Charles Wilson, J. P., ComW. 

Note.— If after being notified, the witness refuses or neglects to appear before the 
Commissioners — or, if after appearing he refuses to answer — or answers evasively and 
ambiguously, he may be punished in the same manner as if the case were pending in the 
Superior Court, 

Directions for Executing Interrogatories. 

1st. Fill the blank in the Commission with the names of the Com- 
missioners ; two Commissioners will answer; one must be a Justice of 
the Peace ; the others must be freeholders. 

2d. The Answers may be written on a separate sheet of paper ; (if, 
as is generally the case, that which contains the Interrogatories is not 



JUSTICES' COURT.— CIVIL JURISDICTION. 



269 



sufficiently large,) and attached to the Commission by a wafer. But 
the Answers must not be in the hand-writing of either of the parties, 
or of any attorney engaged in the case ; nor must they be previously 
written by any such person, and then transcribed. 
Sd. Direct the packet, on the blank side, thus : 



JOHN DOE 

vs. 

RICHARD ROE. 

To James Mack, J. P. 



Case in Justices' Court, 619th District, 
Georgia Militia. 

Perry, Houston County, ( Q'a.) 



On the sealed side thus : 










^ 


^ 


^ 




^ 


^ 


s^ 


o 
cc 
M 
o 

< 


o 
t-5 


O 

CO 


t-3 


m 




Jz; 






K 


<! 


w 


O 
•-2 


1-s 


o 



Mh. The packet mu.st be sealed up with as many seals as there are 
Commissioners, (not less than two, one of whom must be a Justice of 
the Peace;) each Commissioner must write his name across one of the 
seals. 

^th. The packet may be forwarded by mail ; if that course be taken, 
the Commissioners, or one of them, should deliver it to the Post-Mas- 
ter, who makes the following entry upon the packet : 

" Received, Marion^ Twiggs County, (Gra.,) from the hands of Charles 
Wilson^ J. P., one of the Commissioners, this packet, to be forwarded 
by due course of Mail. This July 80, 1859. 

" Stephen Bean, P. M., Marion.''^ 

6th. The Post-Master of the place to which the packet is directed and 
where the Interrogatories are to be used, must bring the packet into 
Court, and swear " That it came to his office by due course of Mail ; 
has remained in his possession ever since, and has not been opened or 
altered." 

7th. The packet may be returned by the party or a private person ; 
in that case, he will have to swear, in open Court, " That he received 
it from the hands of the Commissioners, or one of them ; that it has re- 
mained in his possession ever since, unopened and unaltered." 

8th. When the packet is presented in Court and received, the party 
must move the Court for leave to open it. The following entry should 
be made on the packet: 

" Received on the oath of John Doe, and leave to open granted ; this 
August 10, 1859. "James Mack, J. P." 



270 JUSTICES' COURT.— CIVIL JURISDICTION. 

An Act supplementary to the act of 14th December, 1811. — Approved Dec. 
12, 1816. 

Party signing 62. In all cases in justices' courts, commenced against joint-obligors or 

obligation as promissors, if any one or more of them shall make it appear to the satisfac- 

^^*^^"ly f "l^' tion of the court, that he, she or they, signed said obligation as a security or 

being proved securities only, it shall be the duty of the justice to enter up judgment against 

shall have 'him, her or them as such, and award execution in the same manner; which 

control of the when satisfied by such security, or out of their property, he, she or they, shall 

fi-fO" after he h^ve the control and benefit of said execution, for the purpose of remunerating 

as pai 1 o "i^jj^^^ j^gj. Qj^. themselves, out of their principal, in the same manner as if they 

had been security on the stay of execution : Provided, judgment and execution 

shall be against the principal also. 

An Act to regulate and establish an uniform practice in Justices' Courts. — 
Approved Dec. 9, 1819. 

Uniformity of 63. Sec. I. From and after the first day of January next, the proceedings in 
practice. the justices' courts shall be uniform throughout the State. 

appearance 6^*- Sec. II. The first term shall be deemed and considered as the appear- 
term ; second ance term, when the case shall be docketed, on what shall be called the appear- 
term, judg- ance docket; and on the defendant failing to appear, judgment shall be entered 
by default, as in the superior court. And at the second term, unless there is 
a sufficient showing, judgment shall be entered up : Provided nevertheless, 
the party or parties shall be entitled to an appeal, agreeably to the judiciary 
law now in force in this State. 

Jurisdiction, g^^ '^y.c. III. All iustices of the peace shall have power, in all cases of 
■ debt or liquidated demand, to give judgment for any sum not exceeding $30, 
[150,] exclusive of interest and cost. — [See 81.] 

An Act to provide a more easy and convenient mode of proving open Ac- 
counts, so as to make them evidence in Justices' Courts. — Approved Dec. 
26, 1827. 

Whereas, the practice now pursued by the different Justices' Courts in this 
State, of requiring open accounts to be proven in open court in order to make 
them evidence, is found in many instances to be highly inconvenient; for 
remedy whereof — 

Party living (55 j^^ jf enacted, That from and immediately after the passage of this act, 

or removing .^^ ^^^^ g^j^. ^i^j(3J^ ^^r^y j^g instituted in a justices' court within this State, upon 

County, Ac- ^^" open account against any party who may have removed without the juris- 

count may be dictional limits of the county in which such account was contracted; or who 

proved in the j^^ay reside without the county in which the account was contracted, the said 

i^oumy wnere account may be proven by a written affidavit before any officer authorized to 

administer an oath ; and when so proven shall be received in evidence upon 

Affidavit of the trial of said suit, as though the same had been proven in open court, Pro- 

Plaintiff rxi^y mded hoiocver, that if the defendant will make an affidavit in writing, denying 

be fieniedand^j^g j^jj_,^j^g ^^^j fairness of the whole or any part of the said account, the said 

* court shall not give judgment for so much thereof as may be so traversed or 

controverted, unless supported by other proof. 

Sec. II. All laws and parts of laws militating against this act, are hereby 
repealed. 





Dr. 


$1 


00 


1 


00 


1 


00 


1 


00 


5 


00 


1 


60 


5 


00 



JUSTICES' COUET.— CIYIL JUEISDICTION. 271 

Account of the Plaintiff. 

John Doe to Richard Roe^ 

To 4 lbs. Tobacco, 

1859, 7 lbs. Sugar, 

January 1. 6 lbs. Coffee, - . - 

8 lbs. Nails, ------ 

1 Hat, 

1 pair Shoes, 

1 pair Boots, 

$15 50 

Affidavit of the Plaintiff^', 

STATE OF GEOKGIA, "j In person appeared before the undersigned, 
Bihh County. j a Justice of the Peace in and for said County, 
John Doe^ who being sworn, saith, that he has no other way of prov- 
ing the above Account, (that is in his power to procure,) but by his . 
own oath. And he further swears, that said Account is just and true 
as it stands stated, and that Defendant, (resident in Houston County,) 
contracted said Account with deponent, deponent being a resident in 
the city of Macon, and County of Bibb. This May 1, 1859. 

Sworn to and subscribed, ] 

before me, >■ JoHN DOE. 

John Smith, J. P. ) 

Note. — If the Defendant resided in the same County with the Plaintiff when he con- 
tracted the Account, and removed to another County, then it should be stated, in the 
afiBdavit, thus : " And that Defendant hath removed Irom the said County of Bibb, where 
said Account was contracted, to the County of Houston,^^ etc. 

Aff davit of the Defendarit. 

STATE OF GEOEGIA, j In person appeared before the undersigned, a 
Houston County. | Justice of the Peace, in and for said County, 
Richard Roe, (against whom a suit has been instituted in the Justices' 
Court of the 619th District, G. M. by John Doe, of the County of ^z5&, 
for the sum o^ fifteen dollars,) who being sworn, saith, that said Ac- 
count is unjust and unfair, in this, to wit : that deponent did not pur- 
chase from Plaintiff, four pounds of Tobacco, or any other quantity. 
That deponent did not purchase from Plaintiff, six pounds of Coffee, 
or any other quantity. 

Sworn to and subscribed, I 
before me, this June 10, 1859. \ KiCHAED EOE. 

James Mack, J. P. ) 

An Act for the recovery of Costs in Justices' Courts, in certain cases. — . 

Approved Dec. 26, I83I. 

66. Sec. I. From and after the passage of this act, in all cases carried up by Where the 

writ of certiorari fronn a justices' court to the superior court, and the said certior- "^vrit of Cer- 

ari shall be sustained by the said court, and the proceedings in thecourt below J^^^f"^^ ^^ ,^^^^" 

set aside, without further order. And in all cases carried up in like manner, from farther order 

a justices' court, to the Superior Court, as aforesaid, and the writ oi certiorari \q made. And 

shall be sustained and a new trial ordered, the plaintiff in certiorari^ provided he where, upon 

finally succeeds in his cause, shall recover of the defendant all cost that he *\\^ "^^Jfl^l^ ®^ 
•^ I ' the Writ, a 

new trial is 



272 JUSTICES' COURT.— CIYIL JURISDICTION. 

ordered, how q^, g]^g j^r^y j^^y^ ^^^^^ compelled to pay and lay out, before a certiorari could 

costs Mi6 TJO OG 1 i 1 

recovered. ^^^^'^^ • r r • . 

Execution to ^^* ^' ^^ ^"^^Vi. be the duty of the justices of the peace, in all such 

issue for costs, cases as are mentioned in the foregoing section, to issue execution in the name 
of the prevaiUng party, for all costs that may have accrued in the said case. 

Sec. III. All laws and parts of laws militating against this act, are hereby 
repealed. 

An Act to authorize Constables to serve Summons nine days before the sit- 
ting of the Court to which they are made returnable. — Approved Nov. 
24, 1841. 
Summons to 68. Sec. I. Be it enacted^ That from and after the passage of this act, it 
^® ^®''^®^^,^°^ shall be lawful for the constables in this State, to serve all summons to 
the Court to ^^em directed, nine days before the sitting of the court to .which they are 
which it is re- made returnable : Provided, the same shall have been issued and bear date, 
turnable; but ten days previous to the sitting of the court to which they are made re- 
must issue and i^^pjij^IjIq^ Any law, usage or custom, to the contrary notwithstanding. 

days before. 

An" Act to require all Endorsers [JEndorsees] to sue the principal in his, 
her or their District. — Approved Dee. 10, 1841. 

69. Sec. I. Be it enacted^ That from and after the passage of this act, 
Principal first that in all cases where any person or persons shall endorse a note or notes, 
^"d ^' *^^ s d ^^ ^"^ i^^t ^^ lawful for the endorsee to sue the endorser, (where the prin- 
with Princip'l. ^ip^^ '"^^^ ^i^^^^s^^ ^^"^^ i^ the same county) without first suing the prin- 
cipal in his, her or their district : Provided alioays^ that nothing in this 
act shall prevent the endorser being sued in the same action and the same 
district with the maker : And provided^ that this act shall only apply to 
justices' courts. 

An Act to authorize Defendants in Execution to point out any property 

belonging to them, in their possession. — Approved Dee. 27, 1842. 

-p - , , 70. Sec. I. Be it enacted., That from and after the passage of this act, 

may point out ^^^^ defendants in execution, arising injustices' courts, shall have the right 

Land or Ne- to point out to the levying officer, either land or negroes, in the possession 

groes. of the defendant : Provided however, nothing shall be so construed in this 

act, to restrain the officer from levying such execution on a sufficient 

amount of property to satisfy the same. 

Sec. II. All laws and parts of laws, militating against this act, be and 
the same are hereby repealed. 

An Act to alter, repeal and amend, so much of the 21st section of an act, 

entitled " an act to alter and amend the several Judiciary Acts now in 

force in this State, so far as relates to Justices' Courts," approved Dec. 

14, 1811, which requires Constables to advertise all intended sales at 

one or more of the most public places in the County. — Approved Dec. 

27, 1842. . 

How and "^l- Sec. I. Be it enacted., That from and after the passage of this act, 

where Consta- so much of the above-recited act as requires constables to advertise all in- 

bles must ad- tended sales at one or more of the most public j^hices in the county, be and 

sales. ^^^ the same is hereby repealed. And in lieu thereof, that hereafter it shall 

be the duty of the constables of this State, to advertise all intended sales, 

by them to be made, at three or more of the most public places in their 

proper districts. 



JUSTICES' COURT.— CIVIL JURISDICTION. 273 

Sec. II. All laws and parts of laws, militating against this act, be and 
the same are hereby repealed. 

An Act to declare and make certain the law of this State, in relation to 
the Jurisdiction of Justices' Courts, in certain c2Lses.^Approved Dec. 

26, 1842. 

Whereas, it has been of late, held and considered, in some parts of this 
State, that the act of 1811, relating to Justices' Courts, and authorizing 
Justices of the Peace, in certain cases, to give Judgment in several cases 
on the same day, between the same parties, and in favor of the same Plain- 
tiff; and when the aggregate amount of such Judgments, exceeds the 
sum of thirty dollars, &c., is contrary to the constitution of the State, as it 
then existed, and is therefore, of no authority. And whereas, it is right 
and proper, that the law in this particular should be made certain, accord- 
ing to its long construction and understanding — 

72. Sec. I. J^e it therefore enacted, That in all cases when any bond, several de- 
note, account or other agreement, (gaming debts excepted,) which in its mands, 
original exceeded the sum of thirty dollars, but has been reduced by bond ^^ch under 

or bonds, note or notes : althouo-h of equal dates, and payable at the same *v^^5^ 13)^11 
. ~. > I. J ^ dollars mav 

time, to a sum or sums, under or of thirty dollars each, that then and in be sued to the 
every such case, it shall and may be lawful for any person or persons, who same Court, 
has or have in his, her or their hands, any such note or notes, bond or 
bonds, or accounts, as aforesaid, to bring suit thereon in the justices' court, 
as in other cases. And in such case, the justice or justices are hereby au- 
thorized to give judgment, as in other cases. Any opinion, usage or con- 
struction, to the contrary notwithstanding. 

An Act to regulate Justices' Courts, in cases of Set-Offs. — Approved Dec, 

27, 1842. 

73. Sec. I. Be it enacted. That from and after the passage of this act, get-off allow- 
in all cases in the justices' courts of this State, where the demand or claims ed and Judg- 
of the defendant, is greater in amount and exceeds the plaintiff's demand, ment given in 
it shall be the duty of the justices to allow a set-off, as is now by law al- f^^or of De- 
lowed and pointed out, and give judgment against the plaintiff in favor of 

the defendant : Prodded, that the balance in favor of the defendant does 
not exceed the sum of thirty dollars, including both principal and interest. 

74. Sec. II. In all cases where the defendant's demand or claim ex- Defendant's 
ceeds the sum of thirty dollars in balance, then it shall be the duty of the claim, if over 
justices, to enter a credit in favor of the plaintiff, for the amount of his^^^^ ^^i^-t '<^*^ 
debt on the defendant's claim. ^ ^^^ ^ - ' 

75. Sec. III. When the claim of the defendant is an open account, the ^^.^q^^^ j^^^ 
justices may allow such open account to be proven in court: Provided, proven, 
that neither of the parties shall be allowed to prove their accounts by their 

own oath, in any sum over thirty \^fifty\ dollars. — \_8ee 82.] 

Sec. IV. All laws and parts of laws, militating against this act, be and 
the same are hereby repealed. 

An Act to establish Lost Papers, in the Justices' Courts of this State, and 
for other purposes therein specified. — Approved Jan. 17, 1852. 
Whereas, it often happens that notes, bills, bonds, summons, executions 
and other papers belonging to justices' courts, frequently are lost, destroy- 
ed or mislaid, and thereby, delays occur in the administration of justice, in 
the said courts, in consequence of the doubts that exist as to the authority 
and mode of establishing such lost papers, in said courts ; for remedy 
whereof — 

18 



274 JUSTICES' COURT.— CIVIL JURISDICTION. 

How lost pa- 7G. Sec. I. Be it enacted^ That from and after the passage of this act, 
pers in Justic- when any note, bill, bond or any other evidence of debt ; or any summons, 
es ^^°^s, ^^Y execution, or any other papers belonging or appertaining to any suit, or 
'other proceeding, in any of the justices' courts in this State, shall be lost, 
destroyed or mislaid, from the hands of the magistrates, then and in that 
case, the magistrate or justice of the peace, may by reason and in virtue of 
his office, establish instcmter, in substance, a copy in lieu of the original. 
How lost 77. Sec. II. That when any note, bill, bond, or other evidence of 
papers in debt, or any summons, execution, or other paper or papers, belonging or 
Courts*^mav appertaining to any suit, or other proceeding, in any of the justices' courts 
be established ^^ this State, shall be lost, destroyed or mislaid, by any other person than 
by party, the presiding magistrate or justice of the peace ; or in any manner become 
so lost, destroyed or mislaid, the party or parties, plaintiff, defendant or 
defendants, or any other person interested, wishing to use said lost papers, 
shall be permitted to establish and use, in lieu of such lost original, a copy 
in substance of the same, by making affidavit, that such paper to be used, 
is in substance a coj^y of the original, and that the original is lost, destroyed 
or mislaid, and is not in the power, custody or control of the party seeking 
to use it. And the papers so established, as mentioned in the first and 
second sections of this act, shall and may be used in any suit or other pro- 
ceeding, in any justices' court in this State, wherein such suit is pending, 
Papers must in lieu of said original : Provided^ that this act shall be so construed as 
be connected j^^^ ^q authorize the establishing of any paper in any of the justices' courts 
^^ suit^°^^ ^^ ^^^^ State, which is not in suit or appertaining to some suit, or other pro- 
ceedings, in said courts : And provided further^ that if either party, plain- 
Continuance tiff or defendant, shall claim to be surprised on account of the establishing 
allowed. of any such lost j^aper, said plaintiff or defendant may be entitled to a 
continuance for one term. 

Sec. III. That all laws and parts of laws militating against this act. be 
and the same are hereby repealed. 

Co'py of Paper lost hy the Magistrate. 

Ten days after date I promise to pay John Doe, or bearer, thirty dol- 
lars. Yalue received this May 1, 1859. 

ElCHARD EOE. 

The original Note, of which, tbe above is a copy, in substance, having 
been sued upon, and being left in tbe possession of tbe undersigned, 
has been lost (destroyed or mislaid, as the case may be), pending said 
suit ; therefore, the above is hereby established in lieu of the lost origi- 
nal. In open Court, this June 10, 1859. 

James Mack, J. P. 

. Copy of Paper lost by the Party, 

Ten days after date T promise to pay John Doe^ or bearer, thirty dol- 
lars. Yalue received this May 1, 1859. 

ElCHAED EOE. 

Affidavit of the Party. 

STATE OF GEORGIA, | In person appeared before the undersigned, a 
Houston County. j" Justice of the Peace in and for said County, John 
Doe^ the payee in the above copy Note, who being duly sworn, saith, 
that he was possessed, in his own right, of the original Note, of which 
the above is a copy in substance and effect. That suit was instituted 



JUSTICES' COURT.— CIVIL JURISDICTION. 275 

on said ISTote, in the Justices' Court of the 619tli District, Georgia Mi- 
litia. That during the pendency of said suit, said original Note (being 
in the possession of deponent), has been lost (destroyed or mislaid, as 
the case may be). And deponent further swears, that said original 
Note is not in his power, custody or control, and prays that the above 
copy may be established in lieu of the lost original. This June 10, 
1859. 

Sworn to in open Court, ^ 

before me, J- JOHN DOE. 

James Mack, J. P. ) 

An Act to compel parties Plaintiffs in Justices' Courts to pay the cost 
before taking out a Capias ad Satisfaciendum. And to provide for the 
return of Commissions by M.?ij\[.— Approved Feb. 16, 1854. 

78. Sec. I. Be it enacted., That all plaintiffs injustices' courts, in this . ,, 
State, shall be compelled to pay all costs which have accrued in said court or ^^^^ before 
courts, before taking out a capias ad satisfaciendum., in such case or cases, ca. sa. issued ; 
And the justice of the peace issuing such capias ad satisfaciendwin^ shall to he endorsed 
enter upon the same, in each case, " cost paid by plaintiff or j^laintiffs," as the ^^ Jj^' V'"-, ^^^ 
case may be. And such entry shall be sufficient evidence of the fact, that Defendant 
the cost is so paid. And the plaintiff or plaintiffs may collect the cost, 

with the principal and interest, out of the defendant or defendants, for the 
benefit of said plaintiff or plaintiffs. 

79. Sec II. That all commissions to take testimony by interrogatories, 
hereafter issued by any justice of the peace in this State, may be returned ■•^^t^rrogato- 
by mail when executed, in the same way and manner, as commissions returned by 
issued by the clerks of the superior courts in this State, are returned under Mail, 
the rules of said courts. 

Capias ad Satisfaciendum, 

STATE OF G-EORG-IA, ) To all and singular the Constables of said 

Houston Count3^ f County — Greeting. 

We command you, that you take the body of Bichard Boe^ if to be ( 

found in your County, and him safely keep, so that you have his body 
before the Justices' Court, in and for the 619th District, Georgia Militia, 
to be held on the first Saturday in June next ; then and there to sat- 
isfy John Doe^ in the sum of thirty dollars, principal debt, with interest 
from the 1st day of January, 1859, and $2,50 costs ; which said John 
Doe recovered against said Bichard Boe^ in said Court, at May Term, 
1859. Besides, your fees for this service ; and have you at our said 
Court this Writ. 

Witness my hand and official signature^ this May 10, 1859. 

James Mack, J. P. 

Amount of Cost endorsed, $2,50. 

An Act to authorize the Justices' Courts to establish lost Papers, to the 
amount of their Jurisdiction, and charge for the same [els'] prescribed 
by this act. — Approved March 4, 1856. 

80. Sec. I. Be it enacted., That from and after the passage of this act, Lost papers 
where any person shall seek to establish lost papers, under the 6th section (^^*^^ ^^*') 
of the Judiciary Act of 1799, he shall, if the amounts involved do not ex- established. 



Fees for this 
service. 



276 JUSTICES' COURT.— CIYIL JURISDICTION. 

ceed the jnnsdiction of Justices' Court, present to the justices' court, (to- 
gether with a copy in su1)stance of the paper lost, as nearly as he can 
recollect, which copy shall be sworn to by the party, or provided [2:>roven'] 
by other evidence,) where a rule nisi, may be obtained, calling upon the 
opposite party, to show cause, if any he has, why the copy should not be 
established, in lieu of the original so lost. Which rule nisi, shall be person- 
ally served ten days before court, on the party, if to be found within the 
county ; and if he cannot be found, then said rule nisi, shall be published 
in some public gazette of the State, for the space of one month. 

81. Sec. II. That for the issuing and serving said rule upon the party, 
the justices and constables shall have the same fees as now provided by 
law for issuing and serving writs in justices' courts ; and for issuing cer- 
tified copies of said lost papers, the cost shall be the same as upon issuing 
executions. 

Petition to establish lost Pape7\ 

STATE OF GEORGIA, ) To the Justices' Court of the 619th District, 

Houston County. j Georgia Militia. 

The petition of John Doe respectfully showeth that he was heretofore 
possessed, in his own right^ of a certain original Note^ made by Richard 
Boe^ of said Countj and District (a copy in substance of which Note is 
hereunto annexed). That on \h.e first day of May. 1859, Petitioner lost 
said Note out of his possession. Wherefore, Petitioner prays that said 
annexed copy may be established in lieu of the lost original. This 
May 10, 1859. 

John Doe. 

Copy of the lost Original. 

Ten days after date I promise to pay John Doe^ or bearer, forty dol- 
lars. Yalue received, this January 1, 1859. 

ElCHARD EOE. 

Affidavit of the Party. 

STATE OF GEORGIA, ]i In person appeared before the undersigned, a 
Houston County. ,j Justice of the Peace in and for said County, John 
Doe^ who being sworn, saith, that the above Note is a copy in substance 
of the lost original, as nearly as he can recollect. 

Sworn to and subscribed, ^ 
before me, this June 1, 1859. V JoHN DOE. 

James Mack, J. P. ) 

Note.— The loss of the paper sought to be established, may be proven " by other evi- 
dence," if the circumstances of the case will warrant it. The statute expresses but one 
instance in which a paper may be established, that is, when it is " lost ;' but it is to be 
understood that where a paper is " destroyed," in any way, it is included in the meaning 
of the statute, and may be established under it. 

Rule Nisi. 

STATE OF GEORGIA, ) Justices' Court, 619th District, Georgia Militia. 

Houston County. j June Term, 1859. 

It appearing to the Court, by the Petition and Affidavit of John 
Doe, that he was possessed of an original Note, made by Richard Roe^ 
on the first day of January last, for tlie sum oi forty dollars, due ten 



JUSTICES' COURT.— CIVIL JURISDICTION. 



277 



days after date. And it appearing that, on the first day of May last^ 
said John Doe lost said original Note; therefore, ordered, that said 
Richard Roe show cause, if any he can, at the next term of this Court, 
why the copy filed should not be established, in lieu of the lost 
original; agreeably to the statute in such case made and provided. 
And it is further ordered, that a copy of this rule be served on said 
Richard Roe, personally, or by publication. 



Rule Absolute. 

STATE OF GEORGIA, ) Justices' Court, 619th District, Georgia Militia. 
Houston County. [ J^iy Term, 1859. 

A rule nisi, having been issued at the last term of this Court, calling 
upon Richard Roe, to show cause why the copy of an original Note 
(given by Richard Roe, and described in said rule nisi., and lost by said 
John Roe,) should not be established in lieu of the lost original. And 
no sufficient cause having been shown to the contrary by said Richard 
Roe; therefore, it is hereby ordered, that the copy Note filed in this 
Court, be and the same is hereby established in lieu of the lost 
original. 

AiiT Act to raise the Jurisdiction of the Justices of the Peace. — Approved 

March 5, 1856. 

81*. Sec. I. JBe it e7iacted, That from and after the 1st day of March 
next, the jurisdiction of justices of the peace shall extend to the amount 
of fifty dollars principal, with interest. 

82. Sec. II. That it shall and may be lawful for all promissory notes, 
accounts, and all other evidence of debts, that do not exceed fifty dollars, 
to be sued before a justice of the peace, in a justices' court, in the same 
manner as is now prescribed by law. And when any person shall be sued 
in a justice court on a sum that exceeds thirty dollars, and a judgment 
obtained against the party defendant, the defendant, within four days 
after the adjournment of said court, upon paying all costs that may have 
occurred [accriced], and giving good and sufficient security for principal 
and interest involved in the case, shall have the right to stay the execution 
sixty days. And all judgments obtained in a justice court, where the 
amount is thirty dollars or under, the stay of execution shall be the same 
time as now prescribed by law. — [/See next Act.] 

Sec. III. [Repeals conflicting laws.] 

An Act to amend the second section of an Act " to raise the Jurisdiction 
of the Justices of the Peace," approved March 5th, 1856. — Approved 
Dec. 22, 1857. 

83. Sec. I. That from and after the passage of this act, when any per- Execut'n may 
son shall be sued in a justices' court, and a judgment obtained against the be stayed 
party defendant, the defendant, within four days after the adjournment of ^^^*^ '^^y^- 
said court, upon paying all cost that may have accrued, and giving good 

and sufficient security for principal and interest involved in the case, shall 
have the right to stay the execution sixty days. 
Sec. II. [Repeals conflicting laws.] 

Note.— By the Act of 1811, the defendant was allowed to stay the issuing of execution 
for forty days, if no appeal was entered ; but if an appeal was entered, after the appeal 
trial, a stay of only twenty days was allowed. The foregoing statute changes the time of , 
say on all judgments obtained in justices' courts, to sixty days. 



Jurisdiction 
fifty dollars. 



Notes, ac- 
counts, etc., 
not exceeding 
fifty dollars. 



Stay of Exe- 
cution, sixty 

days, demand 
being over 

$30. 



278 JUSTICES' COURT.— CIVIL JURISDICTION. 

Aisr Act to authorize the Justices of the Peace in any Militia District in 

this State, to adjourn their courts from day to day ; or to hold Court 

two or more days in each Month, whenever the business of any of their 

Courts requires it. — Approved Dec. 10, 1858. 

Justices' C'ts g4^ gg(.^ \ That it shall and may be lawful for [the justices o/] any 

^n^several j^^^^i^^'s' courts in this State, to hold court in their respective districts, two 

days. • 01* niore days in each month, whenever the business of said court requires 

the same. And that the constables' sales shall be on the first day of each 

court. 

Sec. II. [Repeals conflicting laws.] 

An Act to amend an act " to change and simplify the Practice and Plead- 
ing in this State," approved February 20th, 1854. — Approved Dec. 10, 
1858. 
Pleadingsmay §5^ g^^.^ j^ That from and after the passasre of this act, the provisions 
g^j2 ' of the above-recited act, so far as relates to the amending of pleadmg, at 
any stage of the proceedings, shall be extended to the justices' courts of 
this State ; and that the amendments to pleadings injustices courts of this 
State, shall be allowed in the same manner as is now allowed in the 
superior courts. — [For the original act^ see Judiciary. ~\ 
Sec. II. [Repeals conflicting laws.] 

Note. — Although Justices of the Peace have no ^eneraZ jurisdiction to try cases for Tres- 
pass or Damage, yet special authority is given them, in some such cases, particuhxrly as 
respects Rail-roads — see, particularly, the Act of 1854 ; pamp. pp. 93, 94, 95. 

Summonsin Justices' Court ^ {against Trustee of Married Woman.) 
STATE OF GEORGIA, t John Doe against Richard Roe. — Case in Justices' 
Houston County. \ Court, 619th District, G. M. 
To any lawful Officer to execute and return. 

Richard Roe^ of said District and County, Trustee of Mrs. Ann SyJces, 
a married ivoman. — You are hereby required to be and appear at the 
Justices' Court, to be held in and for said District and County, on the 
first Saturday in June 7iext, at the Court- House in said District, by ten 
o'clock in the forenoon, then and there to Answer the complaint of 
John Doe, in an action on an Account against you, as Trustee as afore- 
said, (a copy of which Account is hereunto annexed,) for supplies 
furnished for the use of the Plantation of said Mrs. Ann kSykes, amount- 
ing to the sum of forty dollars, for the year eighteen hundred and fifty- 
eight. As in default hereof, the Court will proceed as to justice shall 
appertain. 

Given under my hand and official signature, this May 1, 1859. 

James Mack, J. P. 
Copy of the Account. 
1859. 
Jan'y 1. Richard Roe, Trustee for Mrs. Ann Syhes, to 

John Doe ..... Dr. 

80 bushels Corn a $1 per bushel . $30 00 

1,000 lbs. Fodder, a $1 per hundred lbs. . 10 00 

Whole amount . . $40 GO 

John Doe. 

Note. — The Judgment and Execution must follow the particularity of the Summons. 
The Officer must levy on a sufficiency of the Trust- Estate to satisfy the debt. The Con- 
stable must advertise as in other cases. 



ATTACHMENT AND GARNISHMENT. 279 



CHAPTEK III. 



ATTACHMENT AND GARNISHMENT. 



An Act to authorize the issuing of Attachments and Garnishments, and 
to regulate proceedings in relation to the same ; and for other purposes. 
— Approved March 4, 1856. 

1. Sec. I. Be it eiiacted^ That process of attachment may issue in the 
following cases — 

1st. When the debtor resides out of this State. 

2d. When he is actually removing, or about to remove without the In wliat cases 
limits of any county. Attachment 

3rd. When he absconds. ™ ^ ^^^"^ 

4th. When he conceals himself. 

5th. When he resists a legal arrest. 

6th. When he is causing his property to be removed beyond the limits 
of this State. 

2. Sec. II. Before process of attachment shall issue, the party seeking Pl'ff^ ln's 
the same, his assent or attorney-at-law, shall make an affidavit before some ^S®"* ^^ f-*" 
judge of the superior court; justice of the inferior court; justice of the^.^^ to"^ make 
peace, or notary public, that the debtor has placed himself in some one of affidavit, 
the positions enumerated in this act ; and also of the amount of the debt 

claimed to be due. When the affidavit is made by the attorney-at-law, or How Att'y at 
affent of the party, he may swear that the amount claimed to be due, is l^^wand 
due according to the best of his knowledge and belief. "^swear 

3. Sec. III. The party seeking the attachment, before the same Plaintiff,* his 
issues, shall also give bond with good security, in an amount at least double Agent or At- 
the debt sw^orn to, payable to the defendant in attachment, conditioned tomey-at- 
to pay such defendant all damages that he may sustain, and also all costs ^^Bond^^^^ 
that may be incurred by him, in consequence of suing out the attachment; 

in the event that the plaintiff shall fail to recover in said case ; w^hich bond 

it shall be the duty of the magistrate before whom the affidavit is made, 

to take ; and where the affidavit is made by the agent or attorney-at-law Agent or At- 

of the plaintiff, such agent or attorney-at-law is hereby authorized to sign torney-at- 

the name of the principal to the bond, who shall be bound thereby, in the ^^.!?^^ ^f' 

S 1 1 1 T • n •- 1 • 1 /? '' ecute iiona 

same manner as though ne had signed it hiraseli. for principal. 

4. Sec. IY. Where the debt, for the recovery of which the attachment Co-partner, 
is sought, is due to a co-partnership, or is due to several persons jointly, it ^is Agent or 
shall be lawful for any one of the co-partners, or joint creditors, his agent ^^'^or^ey-at- 
or attorney-at-law, to make the affidavit, and give the bond as prescribed gj^j^ ^jjg name 
by this act, and to sign the name of the other co-partners or joint creditors, of the other 
to said bond ; and they shall be bound thereby, in the same manner as co-partners, 
though they had signed it themselves. ^^ J^^f^*" credi- 

5. Sec. V. Affidavit being thus made, and bond given, it shall be the Attachflient 
duty of the magistrate before whom such affidavit is made and bond given, on what to be 
or any other magistrate as aforesaid, or notary public, to issue an attach- levied, 
ment against the defendant, which may be levied upon the properties of 



280 ATTACHMENT AND GARNISHMENT. 

the defendant, both real and personal, which may be found in this State. — 

[A7id see 75 and 76.] 

Attachments 6. Sec. VI. When the amount sworn to shall exceed the sum of thirty 

over thirty [ffty^ see 74,] dollars, the attachment shall be made returnable to the 

^^hi^^t^^s"^'^ superior or inferior court of the county where the defendant resides, or 

or Inf. Courts- where he last resided. And when the debt sworn to does not exceed the 

not exceeding sum of thirty [Jifty] dollars, the attachment shall be made returnable to 

that sum, to the justices' court of the district in the county where the debtor resides, 

Justices' or where he last resided; except when the defendant resides out of the 

^^^ ' State ; then and in that case, if the debt sworn to exceed the sum of 

thirty dollars, the attachment may be returned to the superior or inferior 

courts of any county in the State. And where the debt does not exceed 

the sum of thirty \J^ifty\ dollars, the attachment may be returned to any 

justices' court of any district of any county, in this State. — [Justices^ 

jurisdiction increased to fifty dollars ; see 74.] 

Attachments 7^ g^c. YII. Attachments returnable to the superior or inferior courts, 

ow irec e . ^^ ^^ directed to all and singular, the sheriffs and constables of this 

State, and attachments returnable to the justices' courts shall be directed to 

^^levy""^^ all and shigular, the constables of this State. And it shall be lawful for 

any one of the officers to whom the same are directed, as aforesaid, to 

levy the same upon the propei'ty of the defendant, that may be found in 

the county of which he is sheriff or constable. And when an attachment 

shall come into the hands of any officer of the county, in which such 

attachment is returnable, and the. defendant shall have removed his prop- 

■^/^^^J^y , erty beyond the limits of said county, before such attachment is executed, 

^^^f vorv,<^,r^c." it shall bc lawful for the officers havins; such attachment, to follow such 

aiii ieiiiove!s . •i«cn'~ti 1 -\ -\ ' 

his property, property mto any county m this btate, and to levy the same and brmg 

back the jDroperty into the county where the attachment is returnable. 
When under 8, Sec. YIII. Said attachment shall be made returnable to the next 
certain cir- superior, inferior or justices' courts, as aforesaid : Provided^ the term of 
Attachment ^^^^ court does not commence within twenty-days next after the suing 
returnable, ^^^t of said attachment ; and in such event, said attachment shall be made 
returnable to the next superior, inferior, or justices' court thereafter. — 
\But see 73.] 
Dutyofofllcer 9. Sec. IX. It shall be the duty of the officer levying such attachment, 
in returning ^q return the same, with his actings and doings entered thereon, together 
^ment^^ ^'^^ ^^ affidavit and bond, to the court to which the same is made re- 
turnable. 
Where there 10. Sec. X. Where the plaintiff in attachment wishes to levy his attach- 
is property of ment upon property in a different county from that in which the same is 
d^ff ? "^" ' '^ ^'^^'^ ^® ^'^ ^^^ty of the magistrate or notary public, issuing such 
Counties aZms^^^^^^'^^^^ upon the request of the plaintiff, his agent or attorney-at-law, to 
Attachments make out a copy or copies of the original attachment, bond and affidavit, and 
may issue, certify the same officially, to be a true copy or copies, and upon such copies 
Officer's duty, being delivered to any officer to whom the same is directed, of the county 
where the property of the defendant is, it shall be the duty of such officer to 
levy forthwith, the same upon the property of the defendant in such county, 
and to return the same with his actings and doings entered thereon, to the 
courts to which the original attachment is returnable. 
Defendant 11. Sec, XI. When such attachment has been levied upon the property of 
may replevy, the defendant, it shall be the duty of the officer levying the same, to deliver 
. the property so levied on to the defendant, upon his giving bond with good 

security, payable to the plaintiff in attachment, obligating themselves to pay 
the plaintiff the amount of the judgment and costs that he may recover in said^ 
case; in case the property levied upon shall be equal to or exceed the amount 



ATTACHMENT AND GARNISHMENT. 281 

of the debt sworn to be due ; and in double the amount of the debt claimed to 
be due where the property shall [not] exceed the value of the debt claimed Replevy Bond, 
to be due. Which said bond the officer taking the same, shall return with said 
attachment to the court to which the same is made returnable; and it shall be Judgment on 
lawful for the plaintiff to enter up judgment against the defendant and securi-^^P^*^^^ ^^°'^* 
ties upon said bond, for the amount of the judgment that he may recover in 
his said attachment case, in the same manner that now by law judgment may be 
entered up in case of security upon appeals. 

12. Sec. XII. When the defendant does not give security, as provided Perishable 
in the previous section, and the property remains in the hands of the levying P^^P.^^J^" 
officer, and is of a perishable nature, or liable to deteriorate in value from ^^^ g^j^j ^^y 
keeping, or there is expense attendant upon keeping the same, upon these order, 
facts being made plainly to appear to a judge of the superior court, or two 

justices of the inferior court of the county in which the attachment is return- 
able, where the same is returnable to the superior or inferior court; or to a 
justice of the peace, of the county where the same is returnable to a justice's 
court, it shall be their duty to order a sale of such property, which shall be 
at the usual place of holding sheriffs' sales, of the county where such property 
may be, when the attachment is returnable to the superior or inferior court ; 
and when the attachment is returnable to a justices' court, at the usual place 
of constables' sales of the district where the property may be, or at such other 
place where the magistrates ordering such sales may direct. The times and How adver- 
place of holding such sales shall be advertised at the court-house door, and at tised and sold, 
two other public places in the county where the sale is to take place, at least 
ten days before said sale takes place. And when the attachment is returnable 
to a justice's court, it shall be advertised, instead of at the court-house door of 
the county, at the court-house door of the district in which tiie attachment is -^jgpQgj^jQj^ q£ 
returnable ; and the money arising from such sales shall be held by the officer the money, 
making the same, subject to the order of the court to which the attachment is 
returnable. 

13. Sec. XIII. In all cases where attachment may issue, it shall be the Summons of 
duty of the magistrate or notary public issuing the same, at the request of the Garnishment 
plaintiff, his agent or attorney-at-law, to issue summons of garnishment, *<^ issue. Ser- 
directed to any person who may be indebted to, or have property or effects of ^^^g^^^^ 
the defendant in their hands, requiring them to appear at the court to which 

the attachment is made returnable, then and there to depose on oath, what 
they were indebted to the defendant at the time of the service of said garnish- 
ment, or what property or effects of his, they have in their hands, or had at the 
time of the service of said summons of garnishment, and it shall be the duty 
of the officer levying such attachment, to serve such summons of garnishment, 

14. Sec. XIV. When the plaintiff, his agent or attorney-at-law, shall Non-resident 
desire to garnishee persons not residing in the county in which the attachment ^^^'^^^^^^ 
issues, it shall be the duty of the magistrate or notary public issuing the same, amined, 
at the request of the plaintiff, his agent or attorney-at-law, to make out a copy 

of the affidavit, bond and attachment, and certify the same officially to be a 
true copy, and upon the delivery of such copy to any magistrate or notary 
public, who is authorized to issue an attachment by the provisions of this act, 
of the county in which the person sought to be garnisheed resides, it shall be 
the duty of such magistrate or notary public, to make out a summons of 
garnishment for such persons as he may be requested to do by the plaintiff, 
his agent or attorney-at-law, requiring such persons to appear at the next 
superior, inferior or justices' court of said county, according as the original 
attachment is returnable, to a superior, inferior or a justices' court of the 
.county in which it issued, and depose in the manner prescribed by the pro- 
visions of this act. But if the next court as aforesaid, shall be holden within 



282 



ATTACHMENT AND GAENISHMENT. 



Officer's duty. 



Garnishee 
failing to an- 
swer, the case 

to 136 con- 
tinued. 

Judgment 
against Gar- 
nishee. 

Court may- 
continue case. 

Judgment 

against 
Garnishee. 

Property 

returned to be 

sold. 

Disposition of 
the money. 
Garnishee re- 
fusing to de- 
liver property. 

Property to be 
sold. 

Garnishee's 

answer 
traversable. 

How tried. 

Appeal allow- 
ed. 

What may be 
shown on the 
trial of appeal. 



Verdict. 

Judgment. 
Execution. 



Case in Just- 
ices' Courts. 



Levy, what it 

must 

include. 



less than ten days next after the issuing of said summons, then the persons 
garnisheed shall be required to appear and depose at the next court held there- 
after. Which said summons may be served by any officer authorized to levy 
an attachment by the provisions of this act. It shall be the duty of the officer 
serving such summons of garnishment, to return such certified copy of affida- 
vit, bond and attachment, to the court as aforesaid, together with his actings 
and doings endorsed thereon. 

15. Sec. XV. When any person summoned as garnishee fails to appear 
in obedience to the summons, and answer at the term of the court at which 
he is required to appear, the case shall stand continued until the next term of 
the court, and if he shall fail to appear and answer by the next term of the court, 
the plaintiff in attachment may, on motion, have judgment against him for the 
amount of the judgment he may have obtained against the defendant in attach- 
ment, or for so much thereof as shall remain unpaid at the time judgment is 
rendered against the garnishee; and it shall be lawful for the court to con- 
tinue the case against the garnishee until final judgment is rendered against 
the defendant in attachment. 

16. Sec. XVI. Where the garnishee appears and answers that he is 
indebted, or has property or effects in his hands belonging to the defend- 
ant in attachment, judgment shall be rendered against him in favor of the 
plaintiff for such acknowdedged indebtedness, and the property and effects 
whatever they may be, shall be delivered into the hands of the sheriff or 
constable, as the case may be, and by order of the court shall be by him 
sold, and the money arising from such sale, shall be held subject to the order 
of the court. And in case the garnishee fails to deliver over such property or 
effects to the officer as aforesaid, it shall be lawful for the court to attach 
him as for contempt. The property and effects so surrendered and delivered 
into the hands of the officer as aforesaid, shall be sold at such time and 
place, and after such notice given as the court ordering the same, shall di- 
rect. 

17. Sec. XVII. Where the plaintiff in attachment is not content wdth 
the answer of the garnishee, he may, at the term of the court to which 
the same is made, traverse the same, and the issue formed upon this trav- 
erse, shall be tried at the same term, unless cause is shown for a continu- 
ance ; which issue shall be tried by a petit jury, and either party being 
dissatisfied with the folding of said jury may appeal, as in cases at com- 
mon-law ; and the same shall be tried and governed by the same rules 
and regulations as in other appeal cases. On the trial of said issue, it 
shall be competent for the plaintiff to show the amount of the indebted- 
ness of the garnishee, and the value of the property and effects of the de- 
fendant that he has in his hands, or had at the time of the service of 
said garnishment, and which he has not surrendered, as aforesaid. And 
the verdict of the jury shall be the amount of the indebtedness, and for 
the value of the property and effects, not surrendered as aforesaid. And 
upon final judgment being rendered against said garnishee, the plaintiff 
in attachment shall have execution for the amount of such judgment and 
costs, as at common-law. 

18. Sec. XVIII. Where the summons of garnishment is returnable to 
a justices' court, the issue formed upon the traverse, as aforesaid, shall be 
tried by a jury, in the same manner as appeal cases injustices' courts. 

19. Sec. XIX. In all cases it shall be the duty of the officer levying 
the attachment, to levy them in the order, and at the time, in which they 
came into his hands. And it shall be his duty to enter upon the same, the 
year, month, day of the month, and hour of the day, on which he made 
the levy. 



ATTACHMENT AND GARNISHMENT. 283 

20. Sec. XX. When the attachment has been returned to the court 

to which the same is returnable, the subsequent proceedings shall be, in Subsequent 
all respects, the same as in cases at common-law, where there is personal proceedings, 
service. And where the attachment is returnable to the superior and in- 
ferior courts, the plaintiff shall file his declaration, at the first term. 

21. Sec. XXI. It shall be lawful for the defendant to appear by him- 
self, or his attorney-at-law, and make his defence, at any time before final Defence, 
judgment is rendered against him. And either party being dissatisfied 

with the verdict that may be rendered in the case, may enter an appeal as Appeal, pro- 
in cases where there is personal service, and which shall be proceeded jn ^^^^l^^^ss upon, 
and tried, in all respects, as in cases at common-law, or where there is 
personal service. 

22. Sec. XXII. It shall be lawful for the plaintiff, his agent or attorney- 
at-law, at any time within ten days before final judgment on the attach- ^ .. . 
ment, to give notice to the defendant of the pendency of such attachment, plaintiff to De- 
and of the proceedings thereon, which notice shall be served personally fendant, con- 
on the defendant, by the sheriff of the county to which said attachment is sequence, 
returnable, or any constable of said county, by giving him a copy of said ?^^^^ ^^ 
notice, and returning the original, with his service thereon, to the court in served, 
which said attachment is pending, which being done the judgment rend- Extent of 
ered upon such attachment, shall bind all the property of the defendant, judgment, 
and shall have the same force and effect as judgments rendered at com- 
mon-law. 

23. Sec. XXIII. Attachment may issue and be levied on Sunday, What to be 
when the plaintiff, his agent or attorney-at-law, shall swear, in addition to done when 
the oath prescribed by this act, that he has reason to apprehend the lc>ss^,g ^^^.^^^^^ ^^ 
of the debt, unless process of attachment do issue on Sunday ; and shall issued 
also comj)ly with the other provisions of this act ; in relation to issuing on Sunday, 
attachments. 

24. Sec. XXIY. Where the plaintiff in attachment desires the testi- 
mony of a witness who resides out of the county in which the attachment Interrogato- 
issues, he shall make out interrogatories and file them in the clerk's office ^^^^^f^j*^ 
or court, in the same manner as where suit is proceeding by personal serv- 
ice, and a copy of such interrogatories, together with a notice that they 

are filed, shall be posted up at the court-house door where the suit is pend- How served, 
ing, for ten days ; and upon affidavit of that fact being made and filed in 
said case, by the plaintift", his agent or attorney-at-law, it shall be the duty 
of the clerk or justice of the peace, as the case may be, to annex a com- Clerk's or 
mission to such interrogatories, and the same shall be executed and re- Justice s duty, 
turned as in cases at common-law, or where there is personal service. But 
if the plaintiff [^clefe7ida?it^ appears by himself, or attorney-at-law, and de- 
fends the case, interrogatories shall be served in the same manner as at 
common-law. [See Judiciary, title Testitnony.^ 

25. Sec. XXV. Where the debt is not due, the debtor shall be subject Debt not due, 
to attachment, in the same manner, and to the same extent as in cases execution to 
where the debt is due ; except that where the debt does not become due ^ s ayed. 
before final judgment, execution upon the judgment shall be stayed until 

the debt is due. 

26. Sec. XXYI. In cases of joint-contractors and co-partners, where Proceedings 
any one of them shall render himself liable to attachment, agreeably to against joint- 

the provisions of the first section of this act, attachment may issue ao;ainst ^^° f ?^+^L^^ 
, . ^ 1 • ' ^ 1 ' • ' n ^ • • i v" co-partnci. 

mm upon complymg with the previous provisions oi this act, m relation to 

the same ; and proceedings against such joint-contractor or co-partner, 

shall be in all respects as in other cases of attachment ; except that such 



284 ATTACHMENT AND GARNISHMENT. 

attachment shall be levied only upon the separate properties of such joint- 
contractor or co-partner. 

27. Sec. XXVII. In all cases where a person is a security or endorser 
Security or ^^P^^ ^^J instrument in writing, and the principal shall become subject to 

endorser, ag'st attachment, according to the provisions of the first section of this act, it 
his principal, shall be lawful for such security or endorser, upon complying with the 
provisions of this act, in relation to the issuing of attachments, to have at- 
tachment against his principal ; and the proceedings on the same shall be 
Form of ^^ ^^^ respects the same as in other cases of attachment, according to the 
Proceedings, provisions of this act. And the money raised by such attachment shall be 
paid to the person holding such instrument in writing. But if the security or 
Disposition of endorser has paid the debt, then the money raised upon such attachment, 
the money or so much thereof as wnll pay the amount the security or endorser has 
raised. paid, shall be paid to such security or endorser ; and in case the debt is 
Debt not due, ^^^ ^^^ ^^ ^^^ time judgment is rendered against the principal, execution 
stayed. shall be stayed until the debt is due. 

28. Sec. XXVIII. In all cases where the plaintiff has commenced suit 
Attachment for the recovery of his debt, and the defendant, during the pendency of 
pendente Me. ^yJ^^J^ smt^ shall become subject to attachment, agreeably to the first sec- 
tion of this act, the plaintifi" upon complying with the provisions of this 
act, in relation to the issuing of attachments, may have an attachment 
against the defendant ; and all the proceedings in relation to the same, 
shall be as herein-before prescribed, in relation to attachments where no 

Satisfaction of suit is pending. And a satisfaction of the judgment in the common-law ac- 
Judgment. tion, shall satisfy the judgment in attachment, and a satisfaction of the 
judgment in attachment shall satisfy the judgment in the common-law action. 
Vendor of 29. Sec. XXIX. In all cases of sale of lands, where the vendor has 
have Attach- "^^ executed a deed of conveyance to the purchaser for the same, but has 
ment against given bond for titles, or other evidence of the contract, and the pur- 
vendee, chase money has not been paid, and the vendee shall become liable to at- 
tachment, agreeably to the provisions of the first section of this act, 
attachment may issue against him at the instance of the vendor, upon 
complying with the provisions of this act, in relation to attachments ; 
which said attachment shall be levied upon the land described in the bond, 
After proceed- <^i' other evidence of contract for titles. And the subsequent proceedings 
ings. shall be in all respects as is heretofore prescribed in this act, in relation to 
Vendor must attachments. And it shall be lawful for the party bound by such bond, or 
file deed of other contract for titles, to file in the clerk's office of the superior court 
conveyance. ^^ ^^iq county where the land is situated, a good and sufficient deed of 
conveyance of said land to the obligee of said bond, or other contract for 
titles ; and when judgment is obtained upon said attachment, the execu- 
Lien of Ven- tion issuing thereon may be levied upon said land, and the same be sold, 
dor's Judg- anci the money arising from such sale shall be appropriated to the payment 
™®° ■ of said judgment on the attachment, to the exclusion of any other attach- 
ment, judgment or other debt, of the defendant. 
Death of 30. Sec. XXX. In case either plaintiff or defendant in attachment 
either party, shall die before final judgment is rendered in any case, and there is repre- 
Making par- sentation upon the estate of the defendant, parties shall be made in the 
ties. same manner as in cases at common-law, or where there is personal ser- 
On the death vice. But if there is no known representation upon the estate of the de- 
of the fendant, within this State, and the plaintiff in attachment shall die, his 
Plamtiff. executor or administrator may at any time, after his qualification as such. 
Scire Facias cause to be issued by the clerk of the court, or justice of the peace, a 
must issue, scire facias^ returnable to the next term of the court after the issuing of 
the same ; giving notice to the opposite party of his intention to be made 
a party in place of the deceased testator or intestate, which shall be posted 



ATTACHMENT AND GAENISIIMENT. 285 

up at the door of the court-house where such attachment is pending, at How served. 
least twenty days before the term at which such scire facias is made re- 
turnable. And upon affidavit being made by the executor or administra- 
tor of this being done, and said affidavit being filed among the papers in 
the case, said executor or administrator shall, on motion, be made a party, 
and the cause proceed in his name. When the defendant shall die, scire In case of the 
facias shall issue in the manner aforesaid, after the expiration of twelve death of the 
months from the defendant's death, directed to the representative upon I^efendant. 
the estate of the deceased defendant, notifying him of the pendency of 
such attachment, and of the intention of the plaintiff to proceed with the 
same ; which being posted as aforesaid, and affidavit made and filed as 
aforesaid, it shall be lawful for the plaintiff to proceed in the same manner 
as though the death of the defendant had not occurred ; but the executor p , , 
or administrator upon the estate of the defendant may at any time before ^[^^ ^ -^^ 
final judgment upon the attachment, come in and be made a party, and made a party, 
defend in the same manner as his testator or intestate might have done. 

31. Sec. XXXI. It shall be lawful for the defendant in attachment, in all Plaintiflf's 
cases, to traverse the truth of the affidavit in relation to the ground upon which ^ffi^Jivit may 
the attachment has issued, at the return term of the attachment ; and the issue ho\v^^^ ' 
formed upon such traverse, shall be tried by a jury at the same term, unless 

good cause is shown for a continuance. And either party being dissatisfied Appeal 
with the verdict of the jury, may enter an appeal, which shall be governed, in allowed by 
all respects, by the same rules and regulations as other appeal cases. And if either party, 
the final verdict upon said issue shall be in favor of the defendant, said attach- 
ment shall be dismissed at the cost of the plaintiff. 

32. Sec. XXXII. Service of the attachment, by serving process of garnish- Service of 
ment, shall be as effectual for all purposes, as though the attachment had been Garnishment 
served by levying the same upon the property of the defendant. *^^ ^&.v[iq as 

33. Sec. XXXIII. Attachment may issue against incorporations not incor- Attachment, 
porated by the laws of this State, but transacting business within this State, Attachment 
under the same rules and regulations as are by this act prescribed in relation against for- 
to other cases. And it shall be lawful for any agent of such corporation to ^^S^ incor- 
relieve the property levied on, or discharge the summons of garnishment that ^Renlevv 
may be issued, by giving bond to the levying officer, payable to the plaintiff, 
conditioned to pay the amount that may be recovered in said case ; which 

bond the levying officer shall return to the court to which the attachment is 

made returnable. And judgment shall be entered up against the principal and Judo-ment on 

security upon said bond, for the amount the plaintiff may recover against such Keplevy Bond. 

corporation, in the same manner that judgment is now by law entered up 

against securities upon appeal. 

34. Sec. XXXIV. Where property shall be levied on by virtue of any 
attachment, and the same is claimed by any person not a party to such attach- Cl'm allowed, 
ment, it shall be the duty of the person claiming the same, his agent or attor- 
ney-at-law, to make oath before some person authorized by law to administer 

an oath, that the property levied on is the property of the claimant, according Oath of 

to the best of his knowledge and belief, and that the same is not subject to said Claimant. 

attachment. And said claimant shall give bond with good security, payable 

to the plaintiff in attachment, in a sum double the value of the property Bond must be 

claimed, to be judged of by the levying officer; conditioned to pay the plaintiff given. 

all damages which the jury, on the trial of the right of property, may assess 

against him, in case it should be made to appear that such claim was made 

for the purpose of delay. And in case the claim is interposed by the agent or 

attorney-at-law of the claimant, such agent or attorney-at-law, shall have 

powder to sign the name of the claimant to the bond; and the said claimant 

shall be bound in the same manner as though he had signed it himself. It 



286 



ATTACHMENT AND GAKNISHMENT. 



claim. 



Claim, how 
tried. 



return forth 
coming Bond 



Duty of Levy- shall be the duty of the officer taking such affidavit and bond, to return the 
ing Officer in same to the court to which the attachment is returnable, unless the property 
returning levied on should be real estate, in which case it shall be his duty to return the 
sanie to the superior court of the county where the land lies. And in case the 
attachment is returnable to the justices' court, and is levied upon slaves, it 
shall be the duty of the officer to return the affidavit and bond to the next 
superior [or inferior] court of the county in which the attachment issued. 

35. Sec. XXXV. When the claim is thus returned, if returned to the 
superior or inferior court, it shall be tried in the same manner and subject to 
the same rules and regulations as are prescribed by law for the trial of claims 
in those courts where the property is levied on by virtue of executions at com- 
mon law. And when the claim is returned to a justices' court, it shall be tried 
in the same manner and subject to the same rules and regulations as are by 
law prescribed for the trial of appeal cases injustices' courts. 
Claimant may 36. Sec. XXXVJ. When property levied on shall be claimed as aforesaid, it 
execute ^^^h- gj^^^jj ^^ lawful for the person claiming such property, his agent or attorney-at- 
^ *law, to execute a bond with good security, payable to the plaintiff' in attach- 

ment, in a sum double the value of the property claimed, the value to be 
judged of by the levying officer; conditioned to deliver such property at the 
time and place of sale: Provided^ the same should be found subject to the 
attachment. And upon the delivery of such bond to the levying officer it shall 
Ofl&cer must ^e his duty to deliver such property to the claimant, his agent or attorney-at- 
"" "" law. And it shall be the duty of the levying officer to return such bond, 

together with the affidavit and claim bond, to the court to which such attach- 
ment is returnable. And when said claim is interposed by the agent or attor- 
ney -at-law of the claimant, such agent or attorney-at-law of the claimant, shall 
have power to sign the name of the claimant to the bond, who shall be bound 
thereby, in the same manner as though he had signed it himself 

37. Sec. XXXVII. Upon the failure of the claimant to deliver said 
property, according to the conditions of said bond, the plaintiff may imme- 
diately sue the claimant and security upon said bond ; and it shall be lawful 
for him to recover in said suit, the full value of the property claimed, and 
also, all damages, costs and charges that the plaintiff may have sustained, in 
consequence of the failure of the claimant to deliver said property. 

38. Sec. XXXVIII. In cases where the claimant shall deliver the property, 
sue forhire^ and upon selling the same, a sufficient amount shall not be raised to pay the 

etc- debt and cost of the plaintiff, it shall be lawful for the plaintiff to institute suit 

against the claimant and his securities upon his said delivery bond, and to 

recover the full value of the hire, or use of the property while the same has 

been in the possession of the claimant ; and also, full damages for any deterior- 

How Plaintiff ^^^^^^ ^^ ^^^ value of the property, by use or otherwise, while the same has 

may recover been in possession of the claimant : Provided, such amount of recovery shall 

of Claimant, not exceed the amount of debt that may remain due from the defendant in 

attachment to the plaintiff. 
When Judg- 39. Sec. XXXIX. When the defendant has given security according 
ment binds to the eleventh section of this act, or where he has appeared and made 
^t'snronert ^^^^i^^e, by himself [agent] or attorney-at-law ; or where he has been cited 
'to appear, according to the twenty-second section of this act, the judg- 
ment rendered against him in such case, shall bind all his property, and 
shall have the same force and effect, as where there has been personal 
service. And execution shall issue accordingly; but it shall be first 
levied upon the property attached ; in all other cases the judgment on the 
attachment shall only bind the property attached, and the judgment shall 
how entered be entered up only as against such property. 

up. 40. Sec. XL. After the judgment has been obtained in any case of 



Suit on forth 
coming Bond 



Plaintiff may 



an 



Execution 

how levied. 

Judgment 



ATTACHMENT AND GARNISHMENT. 287 

attachment, execution shall issue as in cases at common-law, and the exe- Judgment, 
cution shall be levied in the same manner as executions issuing at common- execution, 
law; and the proceedings, in all respects, shall be the same, except that ^^^' ^^ ^' "^* 
when the judgment only binds the property levied on by the attachment, 
as aforesaid, the execution shall be issued against such property only, and 
that property only shall be levied on and sold. 

41. Sec. XLI. All moneys raised by the sale of defendant's property, Money how 
or otherwise, by virtue of the provisions of this act, shall be paid over to paid out. 
the creditors of the defendant, according to the priority now established 

by law ; saving only, that as between attaching creditors, the attachment 
first levied shall be first satisfied, to the entire exclusion of any attachment 
of younger levy. 

42. Sec. XLII. In all cases of attachment, the form of the afiidavit, 
bond and attachment may be as follows : — [See firsts second^ and third 
Forms ?[ 

43. Sec. XLIII. It shall be lawful to fill up the blanks in each of the When Attach- 
fornis aforesaid, according to the circumstances of each particular case, "^® *^ ^ 
and no attachment shall be void in consequence of a failure to comply with 

the forms aforesaid : Provided^ the provisions of this statute are sub- 
stantially complied with. And when attachments are returnable to justices' How directed 
courts, they shall be directed to all and singular, the constables of this courts. 
State. 

44. Sec. XLIV. In cases where suit is now pending, or may be Garnishment 
hereafter commenced, or where judgment has been obtained, the plaintiff ^* common 
shall be entitled to process of garnishment, under the following rules and 
regulations : — 

45. Sec. XLV. In order to obtain such process, the plaintiff, his agent Garnishment 
or attorney-at-law, Avhen suit is pending, shall make an affidavit of the ^^^ ohtain d. 
amount claimed to be due, before some magistrate authorized to issue an 
attachment by the terms of this act. And when judgment has been 
obtained, of the amount due upon such judgment. And shall further Affidavit, 
swear that he has reason to apprehend the loss of the same, or some part 

thereof, unless such process issue. And when the affidavit is made by the 

agent or attorney at law, he may swear that the amount claimed to be due, 

is due according to the best of his knowledge and belief. The plaintiff Bond to be 

shall also give bond and good security, in a sum at least equal to double given. 

the amount sworn to, payable to the defendant in the suit, or judgment, 

as the case may be ; conditioned to pay to said defendant, all costs and 

damages that he may sustain in consequence of suing out said garnishment, 

in the event that the plaintiff shall fail to recover in the case where suit is 

pending. And where judgment has been obtained, in the event that it 

shall be made to appear that the amount sworn to be due on such judgment, 

is not due. And when such affidavit \hond'\ shall be made by the agent or Agent or At- 

attorney-at~law, of the plaintiff, such agent or attorney-at-law shall have tomey-at-law. 

power to sign the name of the plaintiff to such bond, who shall be bound 

thereby in the same manner as though he had signed it himself 

46. Sec. XLVI. When such affidavit has been made and bond given, Magistrate 
it shall be the duty of the maoistrate taking: the same, upon the request °^"st issue 
of the plaintiff, his agent or attorney-at-law, to issue summons of garnish- ^""^™o"s. 
ment to such person as he may be requested to do, as aforesaid ; requiring ^^en return- 
him to appear at the next term of the court where such suit is pending, able. 

or where such judgment has been obtained : Provided^ such court shall 
sit within not less than twenty days after such summons shall issue ; and Crarnashee'a 
if it shall sit within that time, then to the next court thereafter ; then and ^^s^^^- 
there to depose, on oath, what he was indebted to the defendant at the 



288 ATTACHMENT AND GARNISHMENT. 

time of the service of such process of garnishment, or what property or 
effects he has in his hands belonging to the defendant, or had at the time 
of the service of the summons of garnishment. And upon such affidavit, 
Eeturn of the bond and summons of garnishment being delivered into the hands of any 
officer. officer authorized by this act to levy an attachment, it shall be his duty to 
serve such summons of garnishment upon the person to whom it is directed, 
and to make an entry of such service, and of his actings and doings in the 
premises, upon the affidavit and bond, and return the same to the court to 
which the person summoned as garnishee is required to appear. And all 
subsequent proceedings shall be the same as before prescribed in this act, 
in relation to garnishment, in cases of attachment. — [£ut see 73.] 

47. Sec.XLYII. Where any of the persons sought to be garnisheed 
reside in a different county from the one where judgment has been obtained, 
Non-resident or where suit is pending, it shall be the duty of the magistrate or notary- 
Garnishee public taking such affidavit and bond, to make out a copy of the same, and 
how served, gj^^^^^ officially certify the same to be a true copy, and^ shall deliver such 
certified copy to the plaintiff, his agent or attorn ey-at-law, and upon such 
certified copy being delivered to any magistrate or notary-public of the 
county where the person sought to be garnisheed resides, who is authorized 
by this act to issue an attachment, it shall be the duty of such magistrate 
Must attend to issue summons of garnishment for such person as he may be requested 
and Answer. ^^ ^^^ ^y ^]^q plaintiff, his agent or attorn ey-at-law, requiring him to appear 
at the next superior, inferior or justices' court of said county, according 
as such suit is pending or judgment has been obtained, in the superior, 
inferior or justices' courts ; then and there to depose, according to the 
At what time, previous section of this act. But if the next court shall be held within 
less than twenty days from the time such garnishment issues, said summons 
of garnishment shall require the person to appear at the next court thereafter. 
Officers must 48. Sec. XLVllI. Ihat upon such certitied copy of affidavit, bond and 
serve copy summons of garnishment being delivered to any officer authorized by this act 
and make re- ^^ j^yy ^n attachment, it shall be his duty to serve the same upon the person 
*"^°* to whom it is directed, and return said copy, affidavit and bond to the court 
where such person is summoned to appear, together v^^ith his actings and 
doings thereon. And all subsequent proceedings shall be the same as is pre- 
scribed by this act, in relation to garnishment in cases of attachment, where 
the garnishee resides out of the county in which the attachment is returnable. 
How Defend- 49. Sec. XLIX. That in cases where garnishments are issued, where suit 
aut may dis- is pending, it shall be lawful for the defendant to dissolve such garnishment, 
solve Garnish- a^^ hay^ ^\^q same dismissed, upon his filing in the clerk's office of the court 
^^^^ where the suit is pending in the superior or inferior court, or with the justice 
of the peace, where suit is pending in such court, a bond with good security, 
payable to the plaintiff, for the payment of the judgment and costs in said case. 
Judgment on And it shall be lawful for the plaintiff to enter up judgment upon such bond, 
Garnishee's against the principal and securities, in the same manner as now by law, judg- 
Bond, how en- iY^QYii[, may be entered up against securities upon appeal, 
tered^up.^ 50. Sec L. That all moneys raised by virtue of process of garnishment, 
paid out. under this act, shall be paid over to the creditors of the defendant, according 
to the priorities now established by law. 
Number and ^1- Sec. LI. And be it further enacted, That in all cases where the 
gender. singular number is used in this act, the plural number shall be included, where 
such number is applicable to the case. In all cases where the masculine 
gender is used, the feminine gender shall be included, when the same is ap- 
plicable to the case. 
Oath of Ju- 52. Sec. LII. That upon the trial of all issues arising under this act. to 
ries. be tried by a petit jury, the oath administered to the jury, shall be the same 



ATTACHMENT AND GARNISHMENT. 289 

as at common-law. And in cases upon appeal, the oath shall be the same as 

is now administered to special juries in appeal cases. And in claim cases, the 

same oath that is now required to be administered in claim cases. And the Damages. 

damages to be given in appeal and claim cases, arising under this act, shall be 

the same as is now prescribed by law, in appeal and claim cases. 

53. Sec. LIII. That plaintiff in attachment shall have the right to amend Amendments 
his attachment, or bond, or declaration, as in other cases at common-law. And allowed, 
that the levying-officer of the same shall have the right to amend his return, 

by supplying any omissions or errors. And the court before which the at- 
tachment shall be returned, shall have power to order or allow said amend- 
ments. 

54. Sec. LIV. That where a person who has been defendant in attach- Non-resident 
ment, desires to sue the plaintiff in attachment, to recover damages ; and the Plaintiff in 
plaintiff shall not reside in this State, it shall be sufficient to serve a copy of ^^tachment 
the petition and process on the security to the bond given by the plaintiff. defendant. 

55. Sec. LV. That all acts and parts of acts upon the subject of attach- Eepealing 
ments and garnishments, be and the same are hereby repealed. section. 

56. Sec. LVI. That this act shall take effect and be of force, from and When this act 
after the first day of June next. to take effect. 

An Act authorizing Attachments to issue in cases sounding in Damages. — 

Approved Dec, 21, 1857. 

51. Sec I. That from and after the passage of this act, in all cases of money Attachment 
demands, whether arising ex contractu^ or ex delicto^ plaintiffs shall have the i^ay issue for 
right to sue out attachment, when defendant shall have placed himself in such Damages, 
situation as will authorize plaintiffs to sue out attachment; upon the plaintiff's 
complying with the statutes now of force, in relation to issuing attachments. 

An Act to point out the mode and manner of obtaining Judgments on Dec- 
larations in cases of Attachments in the Superior and Inferior Courts of 
this State, and to give said Judgments lien, as in cases at common-law. — 
Approved Dec, 21, 1857. 

58. Sec I. That from and after the passage of this act, when plaintiffs Declarations 
shall have filed their declarations, in conformity with the 20th section of an iii Attach- 
act approved March the 4th, 1856, entitled "an act to authorize the issuing of ^^^-^ ^ ^? 
attachments and garnishments, and to regulate proceedings in relation to the i^ecause the 
same, and for other purposes therein mentioned," and notice shall have been Attachment is 
given, (in conformity with the 22d section of said act,) no declaration shall dismissed or 
be dismissed because the attachment may have been dismissed or discontinued ; discontinued, 
but plaintiffs shall be entitled to judgments on the declaration, as in other 

cases at common-law, upon the merits of the case. 

59. Sec. II. That when judgments shall be obtained, in conformity with 
this act, they shall be of equal dignity with, and shall have the same lien that 
judgments obtained at common-law do, 

60. Sec III. That no traverse of the plaintiff's attachment, affidavit, or No traverse to 
other proceedings of the attachment, shall delay judgment on the declaration; delay Judg- 
but iudgment may be had on the declaration, subject to the rules of common- ™^^^ on the 
law, as well before the trial of the issue made on the attachment proceedings, 

as afterwards. 

61. Sec IV. That nothing in this act shall affect the lien of attachments, Lien not af- 
as provided for now by law. fected. 

Sec V. [Repeals conflicting laws.] 

An Act to amend the Attachment Laws of this State. — Approved Dec, 22, 
1857. 

19 



290 



ATTACHMENT AND GARNISHMENT. 



Act of 1856, 
extended to 
City Courts. 



Attachment 62. Sec. I. That process of attachment may issue when the adminis- 

raay issue trator on an estate, or the executor of the last will and testament of any de- 

*utor^ or Ad^" ^^^^^^ person, shall be actually removing, or about to remove, without the 

minlstrator. limits of any county of this State, the property of said deceased person : 

Provided, final judgment shall not be entered up against said administrator or 

executor, until after the expiration of two years from the date of grant of 

letters of administration, or letters testamentary, as the case may be. 

An Act to extend an act, approved March 4th, 1856, entitled "an act to 
authorize the issuing of Attachment and Garnishment, and to regulate pro- 
ceedings in relation to the same, and for other purposes therein mentioned,'' 
and to amend said act; and for other purposes therein mentioned. — 
Approved Dec. 22, 1857. 

63. Sec. I. The provisions of the act approved March 4th, 1856, en- 
titled " an act to authorize the issuing of attachments and garnishments, 
and to regulate proceedings in the same, and for other purposes therein 
mentioned," are hereby extended to all courts established in incorporated 
cities, in this State, which are courts of record, exercising civil common- 
law jurisdiction, and to the extent of their respective juiisdictions, and no 
farther. 

64. Sec. II. When the amount sworn to shall be within the jurisdic- 
tion of such city courts, the attachment may be made returnable to the 
city court of that city, where the defendant resides, or where he last re- 
sided, except where the defendant resides out of the State ; then and in 
that case, the attachment may be returned to any city court, having juris- 
diction of the amount. 

65. Sec. III. Attachments returnable to any city court, shall be directed 
to the sheriff of such city, and to all and singular the sheriffs and consta- 
bles of this State, who shall have all the authority of levying the same, 
that is given to officers by the seventh section of said act. 

66. Sec. IY. All attachments made returnable to the city courts afore- 
said, shall be issued, at least, ten days before the sitting of the court next 
thereafter ; and shall be levied, at least, nine days before such sitting ; and 
all such attachments issued within ten days of any such sitting, shall be re- 
turnable to the court next to beheld, after the expiration of such ten days. 

67. Sec. V. The judge of any such city court may order sales of prop- 
erty levied on under attachments returnable to this court, in the same 
manner that a judge of a superior coui't may do, under the twelfth section 
of said act ; and such property, when so ordered to be sold, shall be sold 
by the sheriff of the city, in such manner, at such place, and after such 
notice, as the judge ordering the sale, may direct. 

68. Sec. VI. When it is desired to garnishee persons, not residing in 
the city in which the attachment issues, the same proceedings shall be had 
as are provided for in the fourteenth section of said act : Provided^ that 
the garnishee shall be required to answer at the superior court, of the 
county of his residence. 

69. Sec. VII. The notice provided for in the twenty-second section of 
said act, may be served by the sheriff, or any constable of the city, in 
which the attachment issues. And plaintiffs in attachment may examine 
witnesses residing out of the city in which the attachment issues, uj^on 
complying with the requisites of the twenty-fourth section of said act. 

70. Sec. VIII. In all attachment cases in such city courts, ten days' 
notice, by scire facias^ as provided in the thirteenth \tliirtietli\ section of 
said act, shall be held and deemed sufficient. 

71. Sec. IX. The proceedings authorized by the forty-seventh section 



Attachment 

where 
returnable. 



Attachment 

how 

directed. 



When return- 
able, and how 

long to be 

levied before 

Court. 

Property 
levied on and 
ordered to be 

sold, etc. 



Persons how 

Garnisheed, 

and how to 

answer. 



Notice by 
whom served. 
Witn'ses may 
be examined, 

and how. 

Bcxre Facias to 
make parties. 



ATTACHMENT AND GARNISHMENT. 



291 



of said act, shall be allowed in such city courts, where the person sought 
to be garnisheed, resides elsewhere than in the city where the judgment 
was obtained, or where suit is pending. And the garnishee shall be re- 
quired to answer at the superior court of his county, next to be held there- 
after ; but if the next court shall be held within less than ten days from 
the time such garnishment issues, or is served, such summons of garnish- 
ment shall require such garnishee to appear and answer at the next court 
thereafter. 

' 72. Sec. X. Any judge of such city courts, or any mayor, or inten- 
dant, of such incorporated cities, or any member of the city council, may 
administer the oaths and issue attachments, and do all other things, requi- 
site or proper, under said act, in the same manner and to the same extent, 
as a justice of the peace, magistrate, or notary public, may do under the 
said act : Provided^ that in all such cases, the attachments shall be return- 
able to [the city court^^^ or [^^here] the judgment has been obtained, or the 
suit is pending, (in the city court,) of their respective cities. 



47th section 

applied to 
City Courts. 

Garnishee 

when and 

where to 

Answer. 



Who may 
issue Attach- 
ments, etc. 



Where return- 
able. 



Ten days 

substituted 

for twenty 

days. 



An Act to amend the forty-sixth section of the Attachment Law, assented 
to on the 4th day of March, 1856. — Approved Dec. 21, 1857. 

73. Sec. I. That in all cases of attachment or garnishment, made re- 
turnable to a justices' court, the word ten day 8^ shall be substituted, in 
lieu of the word twenty days. 

74. Sec. II. That the jurisdiction of the justices' courts of this State, in 
cases of attachments, be and the same is hereby extended to the sura of fifty 
dollars, exclusive of interest. 

Sec. III. [Repeals conflicting laws.] 

An Act amendatory of "an act to authorize the issuing of Attachments and 
Garnishments, and to regulate the proceedings in relation to the same, and 
for other purposes therein mentioned," approved March 4th, 1856, so as 
to make the shares, or interest, of Stock-holders in any corporation in this 
State, subject to Attachment and sale; and for other purposes herein men- 
tioned. — Approved Dec. 13, 1858. 

75. Sec. I. That whenever process of attachment shall issue, according Interest of 
to the provisions of an [the^ act of which this is amendatory, and the party Stockholder 
against whom such process issues, shall have or own any interest, or amount ^j^^j^g^ How 
of shares in any corporation in this State, the same may be attached, in levy to be 
mannlr following: the officer in whose hands the attachment is placed, shall niade, and ser- 
endorse thereon, an entry of his levy on the corporate shares, or interest, of ^^^® P®"®^*^^- 
the debtor, and shall forthwith serve a copy of the attachment, with such 

entry endorsed, upon the president of the corporation, at the office of the 

company, or by leaving the same at the usual and most notorious place of 

doing business of said company ; which said entry and service, shall amount 

to and be considered a seizure of said corporate interest, to all intents and 

purposes. And on execution issued on such attachment, may be sold, as the Property how 

same can now be done, by ordinary execution, 

76. Sec. II. That from and after the entry of levy, and service of at- Transfer void, 
tachment on the corporation, as aforesaid, any transfer by the defendant, of 

the stock so attached, shall be absolutely void. And on execution issued, the 
same shall be sold by the sheriff or his deputy, according to the provisions of 
an act to make bank and other stock subject to execution, approved Decem- 
ber 21, 1822, [see Judiciary Executions.^ Certificates of purchase shall be Certificates to 
granted by the officer selling, as therein prescribed; and on presentation of be issued to 
such certificate to the proper officer of said corporation, it shall be his duty *^®P^^^^^^^- 
to make such transfer on his books, (if necessary,) and afford the purchaser 



292 ATTACHMENT AND GAENISHMENT. 

such evidence of title to the stock purchased, as is usual and necessary with 
other stock-holders. 

Sec. 3. [Repeals conflicting laws.] 

An Act to exempt Journey men -Mechanics and Laborers, of this State, from 
the Garnishment of their Wages. — Approved Dec. 27, 1845. 
7t. That from and after the passage of this act, all journeymen-mechanics 
and day-laborers, shall be exempt from the process and liabilities of garnish- 
ment, on their daily, weekly or monthly wages, whether in the hands of em- 
ployers or others. 

Note. — The Supreme Court have decided, since the passing of the Act of 1856, that 
the foregoing Act is of force. 

AFFIDAVIT. 

Affidavit to obtain Attachment, 

STATE OF GEOEGIA, ) comes before the undersigned, 

County. J and on oath, saith that is 

indebted to him in the sum of . And that 

said [here insert the ground of Attachment,'] 

Sworn to before me, this 

day of 18 

^ J. P. 

Note. — "When the Affidavit is made by the Attorney-at-Law, or Agent of the party, " he 
may swear that the amount claimed to be due, is due, according to the best of his knowl- 
edge and belief." The oath, however, without " according to his knowledge and belief," 
is good. — 7 O'a. Rq?. 167. 

Bond given hy the Plaintiff, 

STATE OF GEOEGIA, | We, principal, and 

County. j security, acknowledge ourselves bound 

unto , in the sum of dollars ; 

subject to the following conditions — 

That the said , principal, is seeking an 

Attachment against the said , which is now about 

to be sued out, returnable to the Term of the . Co#rt, of 

the County afor